Scots Family Law Flashcards
(30 cards)
Telfer v Kellock 2004 SLT 1290
Jill Telfer, her female partner, her daughter and her partners son live as a family. Jill dies in a car crash and family sue Kellock. Which relatives can sue under Damages (Scotland) Act 1976? Jill’s daughter (father is suing on her behalf), her partners son can as it is accepted he is a child of the family. Her partner cannot sue as Damages (Scotland) Act does not extend ‘partners living as husband and wife’ to same-sex couples.
Fitzpatrick v Sterling 2001 1 AC 27
Case which considered a same-sex male couple who were together long term. Concerned rights to tenants to flats If a tenant died you can inherit flat if you were living with (the now deceased) tenant as ‘family’ or ‘as husband and wife’? No, must be a man and a woman. Two men ‘as family’? Yes. Hallmarks of family essentially that there should be a degree of mutual interdependence, of the sharing of lives, of caring and love, of commitment and support.
Ghaidan v Godin - Mendoza 2004 2 AC 557
Similar scenario to Fitzpatrick v Sterling. As if husband and wife? Yes (ruling possible as Human Rights Act had come into force). Protection open to unmarried couples; no good reason to exclude same-sex couples.
Burden & Burden v UK
Two sisters argue violation of Article 1 of Protocol 1 and Article 14 - they were a stable cohabiting couple so why were they not treated as equal with husbands and wives especially now Ghaidan case extended recognition to same-sex couples. Held their relationship was not ‘marriage-like’ and so there was, in fact, no discrimination in treating them differently to a married couple or civil partners.
Vo v France 2005 40 EHRR 12
A French doctor carelessly caused the termination of the pregnancy after confusing two patients and piercing the atonic sack of the applicant by mistake. After the criminal judges in France established that homicide was not applicable to a foetal because they are not persons, the European Courts of Human Rights concluded that the absence of criminal laws protecting the foetus did not generate a violation of Article 2.
Kelly v Kelly 1997 SLT IH 896
Father representing foetus. Held that nobody can represent a foetus because it is not a human. Sperm contributors have absolutely no standing in regards to what happens with the foetus. Only the pregnant woman and the law can decide.
Gillick 1986 AC 112
Mrs Gillick was a mother with five daughters under the age of 16. She sought a declaration that it would be unlawful for a doctor to prescribe contraceptives to girls under 16 without the knowledge or consent of the parent. The declaration was refused. Based upon Lord Frasers guidelines. Established the Gillick competency test.
Houston, Applicant 1996 SCLR 943
Child with mental illness refused treatment. Child’s parent was in favour of the treatment. Judge accepted that the child had growing capacity which would usually overveil. However because the child was mentally ill, the judge ruled in favour of the parent and ordered the treatment to be administered.
A v United Kingdom 1998 2 FLR 959
A nine year old boy was discovered to have numerous bruises as he had been beaten with a garden cane on more than one occasion. These injuries were caused by the boys stepfather who was then charged with assault resulting in actual bodily harm. Stepfather successfully claimed defence of reasonable chastisement. Boy took case to ECHR. The beating was of sufficient severity to amount to inhuman or degrading treatment under Article 3.
Smith v Greenhill 1994 SLT (Sh Ct) 22
Establishes the presumption that a woman’s husband is the father of any child she gives birth to (s.5 1986 Act).
V v F 1991 SCLR 225
Held that parents had the right to consent to the treatment of a 15-year-old girl for depression, even in spite of her own refusal to accept treatment (hospitalisation).
F v F 1991 SLT 357
Lord Hope: His attitude was that the requirement of a claim of interest “was not intended to restrict the category of applicants with results which could in some cases be contrary to the best interests of the child”.
Bangham v Bangham 1992 GWD 23-1296
A stepfather sought custody of his stepson, aged 12, who had been accepted into the family on his marriage to the mother over eight years before. The mother contested custody. It was held that since the son remained in contact with his natural father, an award of custody to the stepfather was not appropriate. He was, however, allowed access.
Breingan v Jamieson 1993 SLT 186
A stepfather was advised his case was too weak even to attempt to dispute the custody of the child of his wife by her former husband, after his wife’s untimely death. Instead the custody was fought out between the former husband and the maternal relatives (who won).
Porchetta v Porchetta 1986 SLT 105
The father had had virtually no contact with his 18-month-old son since his birth, and the mother was adamantly opposed to the resumption of contact. In the circumstances, there was “not a shred of evidence” to suggest that this would be in the best interests of the child. The court made no award of access.
Russell v Russell 1991 SCLR 429
Mother was undermining father by acting in a way that meant that when the father of the child showed up it made the child upset. Despite this being unfortunate for the father, this meant that his contact was not in the best interests of the child as it was causing upset.
Brixey v. Lynas 1996 SLT 908
14 month old girl who had lived for the past 10 months with mother. Sheriff awards residence to father – no evidence against either parent but father from affluent middle-class background & that could not be ignored as positive to welfare test. Maternal care is best for infant” was not a presumption that could stand against an evaluation of the child’s welfare but it was always a factor the courts considered.
Early v Early 1990 SLT 221 [IH]
The father had two prior convictions for child neglect and had drunk heavily in the past, but was now seen as reformed character and was awarded custody in competition with a lesbian mother. Based on the idea that living with his lesbian mother would subject him to bullying.
M v M [2011] CSIH 65, 2012 SLT 428
Relocation - The court said there was a dual burden on the pursuer, first to show that the proposed relocation was in the best interests of the child and secondly to show that making a specific issue order was better than making no order at all.
Shields v Shields 2002 SLT 579
Both M&F sought residence in respect of son aged seven; agreed that it was not necessary to intimate action to the boy (implying that he was too young). Sheriff rules for M and also grants specific issue order that M and boy can relocate to Australia. H appeals but decision upheld by Sheriff Principal. H further appeals inter alia that as at time Sh P heard appeal boy was nine years old and the Sh P has failed to consider whether the boy’s views should be sought. Inner House ruled that both the Sheriff and the Sh P were required by s. 11(7)(b) to apply their own minds to whether boy should be given an opportunity to express views on moving to Australia.
JQ v CC 2016
Mother of children aged 4 and 10 sought a Specific Issue Order to relocate the children from Scotland to Exeter. The fathers maintained that it was in their child’s best interests to retain the status quo (shared care). The court refused the mother’s craves for specific issue orders on the basis that, from the children’s perspectives, the proposed relocation was not reasonable and, having regard to the welfare principle, the status quo should continue.
Corbett v Corbett [1971] P 83
A party who wanted to be recognised as a wife “Mrs Corbett” who was born male but had lived as, and been accepted as, a woman, including significant gender realignment medical treatment; nonetheless their birth certificate still indicated that they were male. Set the rigid rule that if, eg, you were designated male at birth, and this was not an apparent error at that time, then you remained male. The consequence was that “Mrs Corbett” could not be married or become married to their male partners because although they were accepted as women and in many respects were women, they would always remain male and a man could not marry a man.
Goodwin v UK (2002) 35 EHRR 18
The applicant argued that they were effectively denied their right to marry while they lived their life as a heterosexual woman and were accepted as such in society they could legal marry a woman as their birth certificate indicated that they were male but that was, in practice, no option at all. The UK government lost and so had to act – which led to the Gender Recognition Act 2004.
Long v Long 1950 SLT 3
The pursuer, Mr Long, sought to nullify his marriage as at the time his wife was a ‘mental defective’. His action failed because the judge ruled that even if the defender was a ‘mental defective’ she still may have been capable of understanding the nature of marriage. He also required medical evidence – but when this was presented, it was found that Mrs Long DID understand the concept of marriage.
