Parental Rights and Responsibilities Flashcards

Question

What three principles must the court apply before making any order ono conferring or removing PRandRs?

Answer 1

- The welfare principle (s.11(7)(a)) - The views of the child (s.11(7)(b)) - The "No order" principle (court must not mae order unless the making of an order advances child's welfare and is better than making no order at all)(s.11(7)(a)

Answer 2

- Anything it sees fit whether asked or not

Answer 3

CSA 1995, s.11(7)(a),(b)

Answer 4

BEING BIOLOGICAL FATHER IS NOT ENOUGH TO SATISFY CONTACT CLAIM - Given paramount interest in the welfare of the child a father cannot have an absolute right to contact - Father in this case had virtually no contact with 18 month all daughter since birth - mother adamantly opposed to resumption of contact - There was not a "shred of evidence" in this case that i would be in the best interest of child for contact to be resumed - Court made no award

Answer 5

- Father enjoyed access to his child for 2 years from date of separation from spouse in 1986 until 1988 - Mother denied contact between father and child on basis that the child was unhappy - no contact for 2 years and court ruled it was in best interest for child to grow without contact from father as feeling were now negative - May seem unfair as these feelings may have been created by the mother

Answer 6

WELFARE OF CHILD PARAMOUNT - "NO ORDER PRINCIPLE" - mother of young girl died young - Custody of daughter was subsequently disputed by her father (who had lost custody at time of divorce with deceased some years before) and the childs aunt who she was living since mothers death HELD - Lord Macellan felt that although father had positive relationship with father and wife and they could provide home it was deemed not to be in child's best interest to remove her from her "happy and settled life" - court believed this would only cause disruption and may be detrimental to her best interests - FURTHER EXAMPLE THAT BEING BIOLOGICAL FATHER IS NOT ENOUGH

Answer 7

- mother and father both sought custody of 14 month old child - parties separated when child was 4 months old and mother had been caring for her for past 10 months - sheriff awarded custody to father on basis the sheriff had a favourable impression on the father's background and unfavourable impression on mother's lifestyle - Court of session reversed decision and awarded custody ton mother as sheriff failed to balance the advantages of father's background with maternal care of mother - Father appealed to house of lords on basis that there was no principle nor presumption in Scotland whereby infancy of child need for mother is stronger than for father HELD - Dismissing the appeal HOL stated that it was not presumption nor principle that maternal care was better for child but a widely held belief based on workings of nature - Court acknowledged this may not always be a relevant factor and may vary case by case but was significant here - Court made clear that it would always consider advantages to child's welfare but only strongest competing advantages were likely to prevails where child was with mother since birth

Answer 8

- Divorced father who had previous convictions of child neglect was awarded custody of child - F had custody of two out of three children and sought custody of the third - First argument was that as mother would not gave them all he should get custody to prevent them being split between parents - Second argument was that he was more willing custodian by reason of mother's unwillingness to contemplate giving him an access. - Thirdly he argued the mothers lesbian relationship may have negative effect on child in social group - Sheriff awarded custody to father on these arguments APPEAL - mother reclaimed on grounds that evidence did not support Lord Ordinary's decision - Reclamation motion denied - Court stated that basis of the third factor had little merit but in strength of first two factors the decision was correct - This being despite failure of the Lord Ordinary to acknowledge the third child already being happy and settled in care of the mother

Answer 9

PARENTS INTERESTS DO NOT OUTWEIGH CHILD'S WELFARE AS PARAMOUNT CONSIDERATION - Appeal by father against Sh. Pr. decision to allow specific issue order of relocation to wife - She wished to take two children to England - Sheriff refused his application for specific issue order and relocation order - Basis of sheriff's award to W was that she wished to set up a new life with her new partner in England and that the outcome of the move could not have been predicted - Sheriff, having regard to children's welfare as paramount, that it was not helpful to them to frustrate wife's ability to move where she pleased in the UK APPEAL - Appeal allowed and specific order recalled - The Sheriff's guidance of the English case of Payne was wrong (1) The effect refusal of mother's relocation and the impact it may have on psychological and emotional stability formed no basis in Scots Law (2) The children's welfare is paramount consideration at all time under Scots law and a parents interests must never receive any greater weight (3) Failing to satisfy himself that a satisfactory and sufficient level of continuing contact would be achievable, the Sheriff went plainly wrong (4) Sheriffs treatment on the transition between schools could be achieved without harm to both children, one of whom required specialist educational support was inconsistent with focus on child's welfare

Answer 10

- Mother (D), Husband of youngest child (P), Other Husband (JC) - Mother sought specific issue order to relocate her child to england from scotland - Sheriff did not take into account eldest child's views as they were ambiguous ISSUES - Issues where raised as to the mother's mental health and self harming - Mental health argument not accepted by sheriff as well as self harming no longer continuing but aspect of it re-occurring could not be ignored - mother's argument that pursuer agreed to relocation was dismissed by sheriff - Alleged that mother had assaulted child which lead to lump and bruising on childs head, she described events that led to injury as accidental which was accepted by sheriff - Evidence that mother did use physical means of chastising children and that she had a very short temper which led to angry outbursts - Mother argued P had assaulted her and that both pursuers engaged in controlling and bullying behaviour towards her and that relocation was the only means to stop such behaviour - D could not refer to any examples of such behaviour other than abusive text message which P had sent upon ending of relationship - No proof of JC ever being physically abusing except on occasion where D was trying to self harm and he restrained her - JC also actively sought medical help for her JUDGEMENT - Sheriff did not find that there was any abuse or the risk of any abuse by the pursuers - There was a principle that if D believed there to be risk of abuse then that may satisfy the sheriff but no authority was cited to support such a proposition - Sheriff, after taking into account all circumstances and having regard to child's welfare as paramount that relocation was not in children's best interests - Sheriff was not satisfied that the making of an order was better than making no order at all - Sheriff had regard to close bond between both pursuers and their children and highlighted the detrimental effect relocation would have on these relationships - Finally the sheriff considered the prospect of the relocation from children perspective and found them to be happy and settled in Glasgow - No interference with the status quo was justified in these circumstances

Answer 11

- Both mother and father sought residence order in respect of their son - They both agreed that it was not necessary to intimate action to boy (implying he was too young) - Sheriff rules in favour of mother and grants specific issue order for relocation to Australia - The sheriff principal upheld the order and the father further appealed to the inner house of the court of session APPEAL - F appealed on basis that at time Sh. Pr. heard appeal the child was nine years ild and the Sh. Pr. failed to consider whether his opinion should be sought - Mother argued that where intimation had been dispensed with it was unnecessary for sheriff to reconsider it unless there was a material change in circumstances or the question arose HELD - Appeal allowed (1) duty under s.11(7)(b) of the CSA 1995 required to be discharged at time relevant order was made and if necessary by the court of its own accord (2) the lapse of time in present case between intimation being dispensed and the decision being made amounted to a material change in the circumstances (3) Existence of evidence of child's views was no substitute for proper inquiry in to his views - Sheriff errer in failing to ascertain whether the child wished to express a view on whether he should go to Australia

Parental Rights and Responsibilities Flashcards

(35 cards)