Adults and Children (Scotland)

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Law (Comparative Scottish and English Family Law) Mind Map on Adults and Children (Scotland), created by Ruaraidh Simpson on 25/04/2017.
Ruaraidh Simpson
Mind Map by Ruaraidh Simpson, updated more than 1 year ago
Ruaraidh Simpson
Created by Ruaraidh Simpson over 7 years ago
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Resource summary

Adults and Children (Scotland)
  1. The Legal Connection between an Adult and a Child
    1. 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
      1. Age of Legal Capacity (Scotland) Act 1991
      2. The nature of the legal relationship existing between an adult and a child?
        1. Scope and nature of rights Children (Scotland) Act 1995 - welfare of the child is PARAMOUNT
          1. 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
        2. 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
          1. one exception to this rule in that responsibility to give a child GUIDANCE ends at the age of 18
          2. RESPONSIBILITIES (s.1 Children (Scotland) Act 1995 subject to s.3(1)(b) & (3))
            1. (a) to safeguard and promote the child's health, development and welfare
              1. (b) to provide, in a manner appropriate to the stage of development of the child (i) direction & (ii) guidance
                1. (c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis
                  1. (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
              2. RIGHTS (s.2 Children (Scotland) Act 1995 subject to s.3(1)(b) & (3))
                1. (a) to have the child living with him or otherwise to regulate the child's residence
                  1. (b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing
                    1. (c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis
                      1. (d) to act as the child's legal representative
            2. Attribution of Parental Rights and Responsibilities (s.3 CSA)
              1. Who has PR&R's? There are 3 categories to consider
                1. 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)
                  1. 2. Rights obtained by agreement
                    1. 3. Rights obtained by court order
                      1. CSA 1995 s.11(3)(a)(i)
                        1. the relevant circumstances mentioned in ss.(1) above are
                          1. (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
                            1. Orders
                              1. 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))
                                1. RESIDENCE ORDER
                                  1. s.11(2)(c)
                                    1. Principles applied by Court
                                      1. Breingan v Jamieson 1993 SLT 186
                                        1. Sherwin v Trumane 1992 GWD 29-1681
                                          1. Parental care, behaviour and lifestyle
                                            1. Brixey v Lynas 1996 SLT 908
                                              1. Early v Early 1990 SLT 221
                                                1. Clayton v Clayton 1995 GWD 18-1000
                                                  1. View of the Child
                                                    1. Shields v Shields 2002 SLT 579
                                            2. CONTACT ORDER
                                              1. s.11(2)(d)
                                                1. does a father have an inherent right to contact or must he prove it is in the best interests of the child?
                                                  1. Porchetta v Porchetta 1986 SLT 105
                                                    1. Russell v Russell 1991 SCLR (Notes) 429
                                                      1. Sanderson v McManus 1997 SLT 629
                                                        1. White v White 2001 SLT 485
                                                2. Internal Relocation and the Leave to Remove principle
                                                  1. 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
                                                    1. How should courts decide such disputes? Welfare of individual child paramount, regard must be had to child's view, no order principle
                                                3. SPECIFIC ISSUE ORDER
                                                  1. s.11(2)(e)
                                                    1. M v M [2011] CSIH 65, 2012 SLT 428
                                                      1. Donaldson v Donaldson [2014] CSIH 88, 2014 Fam LR 126
                                        2. s.4 acquisition by natural father
                                          1. 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. Parenthood Cases involving Assisted Reproduction
                                          1. meaning of "mother" HFEA 2008 s.33
                                            1. (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
                                              1. Evans v UK
                                                1. 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.
                                                  1. 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
                                              2. Married father has rights
                                                1. 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. 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
                                                    1. 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
                                                      1. 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
                                                        1. 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
                                                  2. 3rd element of s.3 CSA deals with female same-sex partners
                                                    1. (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
                                                      1. Smith v Greenhill
                                                        1. 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
                                                2. (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
                                                  1. (i) married to the mother at the time of the child's conception or subsequently
                                                    1. (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)
                                                3. Can a child apply for a specific PR or R?
                                                  1. D v H 2004 SLT (Sh Crt) 73
                                                    1. E v E 2004 Fam LR 115
                                              3. Registration
                                                1. 2 categories where PR&R will be acquired automatically by a person upon him or her being registered as a parent of the child
                                                  1. unmarried fathers
                                                    1. 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
                                                      1. female same-sex partners
                                                        1. HFEA treatment, s.3(1)(d) CSA 1995
                                                          1. 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)
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