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Adults and Children (Scotland)
- The Legal Connection between an Adult and a Child
- Who is a child? Insofar as parental responsibilities
and rights are concerned, a child is a person under 16,
see s.1(2) of the Children (Scotland) Act 1995
- Age of Legal Capacity (Scotland) Act 1991
- Age of Legal Capacity (Scotland) Act 1991
- The nature of the legal relationship existing between an adult and a child?
- Scope and nature of rights Children (Scotland)
Act 1995 - welfare of the child is PARAMOUNT
- a child under the age of 16 can enlist the
help of a solicitor to bring action against a
parent who does not fulfil their PR&R's as
per the Age of Legal Capacity Act 1991
- a child under the age of 16 can enlist the
help of a solicitor to bring action against a
parent who does not fulfil their PR&R's as
per the Age of Legal Capacity Act 1991
- Scope and nature of rights Children (Scotland)
Act 1995 - welfare of the child is PARAMOUNT
- Parents are afforded parental RIGHTS so that they may fulfil their
parental RESPONSIBILITIES, which end when the child has active
legal capacity from the age of 16
- one exception to this rule in that responsibility to give a
child GUIDANCE ends at the age of 18
- one exception to this rule in that responsibility to give a
child GUIDANCE ends at the age of 18
- RESPONSIBILITIES (s.1 Children (Scotland) Act
1995 subject to s.3(1)(b) & (3))
- (a) to safeguard and promote the child's
health, development and welfare
- (b) to provide, in a manner appropriate to
the stage of development of the child (i)
direction & (ii) guidance
- (c) if the child is not living with the
parent, to maintain personal
relations and direct contact with
the child on a regular basis
- (d) to act as the child's legal representative, but
only in so far as compliance with this section is
practicable and in the interests of the child
- (d) to act as the child's legal representative, but
only in so far as compliance with this section is
practicable and in the interests of the child
- (c) if the child is not living with the
parent, to maintain personal
relations and direct contact with
the child on a regular basis
- (b) to provide, in a manner appropriate to
the stage of development of the child (i)
direction & (ii) guidance
- RIGHTS (s.2 Children (Scotland) Act 1995 subject to s.3(1)(b) & (3))
- (a) to have the child living with him or otherwise to regulate the child's residence
- (b) to control, direct or guide, in a manner appropriate to the
stage of development of the child, the child's upbringing
- (c) if the child is not living with him, to maintain personal
relations and direct contact with the child on a regular basis
- (d) to act as the child's legal representative
- (d) to act as the child's legal representative
- (c) if the child is not living with him, to maintain personal
relations and direct contact with the child on a regular basis
- (b) to control, direct or guide, in a manner appropriate to the
stage of development of the child, the child's upbringing
- (a) to have the child living with him or otherwise to regulate the child's residence
- (a) to safeguard and promote the child's
health, development and welfare
- Who is a child? Insofar as parental responsibilities
and rights are concerned, a child is a person under 16,
see s.1(2) of the Children (Scotland) Act 1995
- Attribution of Parental Rights and Responsibilities (s.3 CSA)
- Who has PR&R's? There are 3 categories to consider
- 1. The automatic attribution of rights and
responsibilities - burth mothers, married fathers,
from 4th May 2006 unmarried fatheres who are
registered as the father, from 6th April 2009
under the Human Fertilisation and Embryology
Act 2008 s.42 the female civil partner of the birth
mother, a woman who is a parent by virtue of
s.43 HFEA who is then registered as a second
parent (NOT a second mother)
- 2. Rights obtained by agreement
- 3. Rights obtained by court order
- CSA 1995 s.11(3)(a)(i)
- the relevant circumstances mentioned in ss.(1) above are
- (a) that application for an order under that subsection is made by a person who
- not having, and never had, PR&R's in relation to the child CLAIMS AN INTEREST
- Orders
- Court can do anything it sees fit, whether asked to or not in
terms of removing or granting PR&R (s.11(2)(a)&(b))
- RESIDENCE ORDER
- s.11(2)(c)
- Principles applied by Court
- Breingan v Jamieson 1993 SLT 186
- Sherwin v Trumane 1992 GWD 29-1681
- Parental care, behaviour and lifestyle
- Brixey v Lynas 1996 SLT 908
- Early v Early 1990 SLT 221
- Clayton v Clayton 1995 GWD 18-1000
- View of the Child
- Shields v Shields 2002 SLT 579
- Shields v Shields 2002 SLT 579
- Brixey v Lynas 1996 SLT 908
- Breingan v Jamieson 1993 SLT 186
- Principles applied by Court
- s.11(2)(c)
- CONTACT ORDER
- s.11(2)(d)
- does a father have an inherent right to
contact or must he prove it is in the best
interests of the child?
- Porchetta v Porchetta 1986 SLT 105
- Russell v Russell 1991 SCLR (Notes) 429
- Sanderson v McManus 1997 SLT 629
- White v White 2001 SLT 485
- White v White 2001 SLT 485
- Sanderson v McManus 1997 SLT 629
- Russell v Russell 1991 SCLR (Notes) 429
- Porchetta v Porchetta 1986 SLT 105
- does a father have an inherent right to
contact or must he prove it is in the best
interests of the child?
- Internal Relocation and the Leave to Remove principle
- standard situation; parents separate, both have PR&R's, mother primary
carer, mother wishes to move abroad to start a new life/go home/join new
partner, parents unable to agree, mother seeks judicial approval to relocate
children, father opposes
- How should courts decide such disputes? Welfare of individual child
paramount, regard must be had to child's view, no order principle
- How should courts decide such disputes? Welfare of individual child
paramount, regard must be had to child's view, no order principle
- standard situation; parents separate, both have PR&R's, mother primary
carer, mother wishes to move abroad to start a new life/go home/join new
partner, parents unable to agree, mother seeks judicial approval to relocate
children, father opposes
- s.11(2)(d)
- SPECIFIC ISSUE ORDER
- s.11(2)(e)
- M v M [2011] CSIH 65, 2012 SLT 428
- Donaldson v Donaldson [2014] CSIH
88, 2014 Fam LR 126
- Donaldson v Donaldson [2014] CSIH
88, 2014 Fam LR 126
- M v M [2011] CSIH 65, 2012 SLT 428
- s.11(2)(e)
- Court can do anything it sees fit, whether asked to or not in
terms of removing or granting PR&R (s.11(2)(a)&(b))
- Orders
- (a) that application for an order under that subsection is made by a person who
- not having, and never had, PR&R's in relation to the child CLAIMS AN INTEREST
- the relevant circumstances mentioned in ss.(1) above are
- CSA 1995 s.11(3)(a)(i)
- s.4 acquisition by natural father
- where a child's mother has not been deprived of some or all of the PR&R's in relation to him
and by virtue of ss.(1)(b) of s.3, his father has no PR&R's in relation to him, the father and
mother, whatever age they may be, may by agreement provide that as from the appropriate
date, the father shalll have the PR&R's which (in the absence of any order under s.11 affecting
those PR&R's) he would have if he married the mother
- where a child's mother has not been deprived of some or all of the PR&R's in relation to him
and by virtue of ss.(1)(b) of s.3, his father has no PR&R's in relation to him, the father and
mother, whatever age they may be, may by agreement provide that as from the appropriate
date, the father shalll have the PR&R's which (in the absence of any order under s.11 affecting
those PR&R's) he would have if he married the mother
- 3. Rights obtained by court order
- Parenthood Cases involving Assisted Reproduction
- meaning of "mother" HFEA 2008 s.33
- (1) the woman who is carrying or has carried a
child as a result of placing in her of an embryo of
sperm and eggs, and no other woman, is to be
treated as the mother of the child
- Evans v UK
- unmarried couple, decided to ahve a child
through infertility treatment, woman's eggs
were used, male provided sperm donation
and embryos were artificially created.
Before implantation the couple separated
and the male withdrew his consent for the
use of his sperm to create an embryo, clinic
therefore refused to implant.
- Woman took claim to ECJ that her right
to found a family had been breached.
Held that there was no right in these
circumstances and that it would not be
right to impose family life upon the
male which he did not want to have
against his wishes. Any right that she
had to use the embryo, was no stronger
than his right to refuse
- Woman took claim to ECJ that her right
to found a family had been breached.
Held that there was no right in these
circumstances and that it would not be
right to impose family life upon the
male which he did not want to have
against his wishes. Any right that she
had to use the embryo, was no stronger
than his right to refuse
- unmarried couple, decided to ahve a child
through infertility treatment, woman's eggs
were used, male provided sperm donation
and embryos were artificially created.
Before implantation the couple separated
and the male withdrew his consent for the
use of his sperm to create an embryo, clinic
therefore refused to implant.
- Evans v UK
- Married father has rights
- there is a legal
presumption that a
husband is the father of
his wife's child - Law
Reform (Parent and Child)
(Scotland) Act 1986 s.5,
presumption as to
paternity arises under
the Act if there is a
marriage at any time
between conception and
birth
- in s.3(1) the presumption is
even broader than in s.5 -
under the CSA a man acquires
PR&R's if he marries the
mother at the time of the
child's conception of
subsequently
- If H&W are married at
the date of conception
and birth H is presumed
to be the father of the
child and will
automatically have
PR&R's
- If H&W are married after the
date of conception but before
the birth, H will be presumed to
be the father and he will have
automatic PR&R's
- If H&W are married after the birth -
H will not be presumed to be the
father, but if his paternity is
established then he will
automatically acquire PR&R's
- If H&W are married after the birth -
H will not be presumed to be the
father, but if his paternity is
established then he will
automatically acquire PR&R's
- If H&W are married after the
date of conception but before
the birth, H will be presumed to
be the father and he will have
automatic PR&R's
- If H&W are married at
the date of conception
and birth H is presumed
to be the father of the
child and will
automatically have
PR&R's
- in s.3(1) the presumption is
even broader than in s.5 -
under the CSA a man acquires
PR&R's if he marries the
mother at the time of the
child's conception of
subsequently
- 3rd element of s.3 CSA deals with female same-sex partners
- (c) without prejudice to any arrangements
which may be made under ss.(5) below,
where a child has a parent by virtue of s.42
HFEA 2008, that parent has PR&R's in
relation to the child
- Smith v Greenhill
- sought to prove that Mrs
Greenhill's daughter was
Smith's child, Mrs Greenhill
was married to a Mr Greenhill
and had other children with
him. Mrs Greenhill refused to
give a DNA sample for testing.
Mr Smith requested an
adverse inference. Evidence to
show that during conception
Mrs Greenhill had had sex with
both men and therefore the
legal presumption fell toward
Mr Greenhill being the father
of the child
- sought to prove that Mrs
Greenhill's daughter was
Smith's child, Mrs Greenhill
was married to a Mr Greenhill
and had other children with
him. Mrs Greenhill refused to
give a DNA sample for testing.
Mr Smith requested an
adverse inference. Evidence to
show that during conception
Mrs Greenhill had had sex with
both men and therefore the
legal presumption fell toward
Mr Greenhill being the father
of the child
- Smith v Greenhill
- (c) without prejudice to any arrangements
which may be made under ss.(5) below,
where a child has a parent by virtue of s.42
HFEA 2008, that parent has PR&R's in
relation to the child
- there is a legal
presumption that a
husband is the father of
his wife's child - Law
Reform (Parent and Child)
(Scotland) Act 1986 s.5,
presumption as to
paternity arises under
the Act if there is a
marriage at any time
between conception and
birth
- (1) the woman who is carrying or has carried a
child as a result of placing in her of an embryo of
sperm and eggs, and no other woman, is to be
treated as the mother of the child
- (b) without prejudice to any arrangements
which may be made under ss.(5) and
subject to any agreement which may be
made under s.4, his father has such
responsibilities and rights in relation to
him only if
- (i) married to the mother at the time of
the child's conception or subsequently
- (ii) where not married to the
mother at that time or
subsequently, the father is
registered as the child's father
under any of the enactments
mentioned in ss.(1A)
- (ii) where not married to the
mother at that time or
subsequently, the father is
registered as the child's father
under any of the enactments
mentioned in ss.(1A)
- (i) married to the mother at the time of
the child's conception or subsequently
- meaning of "mother" HFEA 2008 s.33
- Can a child apply for a specific
PR or R?
- D v H 2004 SLT (Sh Crt) 73
- E v E 2004 Fam LR 115
- E v E 2004 Fam LR 115
- D v H 2004 SLT (Sh Crt) 73
- 2. Rights obtained by agreement
- 1. The automatic attribution of rights and
responsibilities - burth mothers, married fathers,
from 4th May 2006 unmarried fatheres who are
registered as the father, from 6th April 2009
under the Human Fertilisation and Embryology
Act 2008 s.42 the female civil partner of the birth
mother, a woman who is a parent by virtue of
s.43 HFEA who is then registered as a second
parent (NOT a second mother)
- Registration
- 2 categories where
PR&R will be acquired
automatically by a
person upon him or
her being registered
as a parent of the
child
- unmarried fathers
- a father will also
acquire PR&R's
automatically if he is
not married but he is
registered as the
father. This only
applies to
registrations on or
after the 4th May
2006 - the date the
Family Law (Scotland)
Act came into force
- female same-sex partners
- HFEA treatment, s.3(1)(d) CSA 1995
- without prejudice to any
arrangements which may be
made under ss.(5) and subject to
any agreement which may be
made under s.4(1) of the Act
where a child has a parent by
virtue of s.43 HFEA that parent
has PR&R's in relation to the child
if she is registered as a parent of
the child under any of the
enactments mentioned in ss.(3A)
- without prejudice to any
arrangements which may be
made under ss.(5) and subject to
any agreement which may be
made under s.4(1) of the Act
where a child has a parent by
virtue of s.43 HFEA that parent
has PR&R's in relation to the child
if she is registered as a parent of
the child under any of the
enactments mentioned in ss.(3A)
- HFEA treatment, s.3(1)(d) CSA 1995
- a father will also
acquire PR&R's
automatically if he is
not married but he is
registered as the
father. This only
applies to
registrations on or
after the 4th May
2006 - the date the
Family Law (Scotland)
Act came into force
- 2 categories where
PR&R will be acquired
automatically by a
person upon him or
her being registered
as a parent of the
child
- Who has PR&R's? There are 3 categories to consider
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