Family Law Essay - Do children in Scotland have too many legal rights? Is this taking away control PDF

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Do children in Scotland have too many legal rights?
Is this taking away control from parents? ...

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Georgia Temple Family Law Essay Children in Scotland are protected and treated, mostly, as equals to adults. Even though there are some laws which state children cannot do certain things, there are usually opportunities to rebut these and allow children even under the age of legal capacity to bear this right too. Some may argue that this takes an element of control away from parents, if children are seen and treated as equal to them. Scotland has recently changed their laws to a line with the UNCRC with the Children (Equal Protection from Assault) (S) Bill. This is not yet an act as it is awaiting royal assent, however it will soon be enforceable. This protects children from being assaulted by their parents, even if justifiable. In Scotland when two parents who share equal PRRs over the child have separated and cannot decide residence and contact arrangements, the court has to apply the three over-arching principles. Article 12 of the UNCRC which states that children with views in decisions affecting them must be able to share them freely, considering their age and maturity. This is implemented into Scottish law through the Children (Scotland) Act 1995 s 11(7) states the three over-arching principles, s 11(7)(a), states that the welfare of the child is the courts paramount consideration and shall only make such orders if they are in the best interest of the child. This means any decision that the court decides will have to put the welfare of the child first, not the parents. This gives children an element of power as it means parents, for instance, cannot take their children to another country, if it is not in the best interest of the child. In the Fourman v Fourman 1998 case, the mother and father had separated and the mother wanted to take their three children to her homeland of Australia for a “better life”. The court held that it was more in the mother’s best interest to go to Australia and it would in fact not be better for the children to go than not to go, thereby the application was refused. Parents therefore may argue that they lose an element of control over their children if they cannot decide where they live, something that most parents would decide for their children. However, when it comes to separating the children from their father (or other parent) it has to be in the best interest of the child, not the pursuer. The welfare of the child is still the paramount consideration even in cases where a genetic parent raises an action for residence. In the Sanderson v McManus 1997 case an unmarried father had interim access to his child but he wanted more, however was rejected as it wasn’t in the child’s best interest, this happened twice before he appealed to the Court of Session saying it was against his right as the genetic father of the child, again this was rejected as it wasn’t in the child’s best interest. The principle of this case is just because you are the genetic parent to a child does not give you the right to have residence of the child, it is solely based on what is best for the child, there is no presumption in favour of a genetic parent. This would take away a lot of control from the parent as they could lose all contact with their own children, some parents may argue this isn’t fair as it is their child and they should be able to see them whenever they wish. Some parents may even raise an action under Article 8 of the European Convention of Human Rights which states that everyone has a right to

Georgia Temple “respect for one's private and family life”. However, again if it is not in the child’s best interest then the parent can still be refused residence, as that is the courts paramount consideration. S 11(7)(b)(i)(ii) and (iii), states that the court must consider the views of the child and allow them to give the views if they wish and to regard them. A child under the age of 16 has the right to instruct a solicitor if the person has a general understanding of what it means to do so under S 2(4A) of the Age of Legal Capacity (Scotland) Act 1991, which also states the presumed age to do this is 12 or over. By instructing a solicitor, children can make their views heard on civil cases by raising their own action. In the Fourman v Fourman case their 14 year-old daughter instructed a solicitor and as she didn’t side with either parent, she became a new party to the case. When the views of the child are heard, the age and maturity of the child are considered, again aged 12 and over is the presumed age for a child to have the understanding to be able to contribute to a case, however as this is a presumption a child younger than 12 can have their views heard too and this is up to the Sheriff. Children can also fill out a Form F9, which is known as a “What I Think Form” which is a child friendly form in order for them to express their views. This gives children the opportunity to express their opinion, however, this form gets filled out at home, therefore could be influenced by a parent. Therefore, I wouldn’t argue this takes much control away from parents as they could tell their child what the write on the form in order to make it look like the child shares their views. Children could also talk directly to a judge or sheriff however this isn’t done very regularly, but it does allow children to speak with them in private to share their views, therefore this cannot be influenced by the parent, meaning they cannot have control over it, this occurred in the Shields v Shields case. The child can also be represented through a court appointed Welfare Reporter or Curator ad litem. They will listen to the child’s views and put forward what they believe would be in best for the child. This is a way for a child to express their views and have someone then make a decision on what they would feel is best for the child, depending on what the child had said. Parents may argue that they know what’s is best for their child, not a judge that barely knows their situation. Parents should be able to make decisions for their children, especially those that may not be of legal capacity to fully understand or even those who do but may be under 12. The less parents have control over their children the harder parents may find it to actually parent their children, to raise them and teach them things. However, if a child has a view on a decision that affects them, and they wish to share it, then that is their right under article 12 of the UNCRC and their welfare is the paramount consideration. There is a legal saying that “children should have a voice, not a choice”. Children have a right to share their views and opinions in all decisions affecting them, which has to be considered by the court, however the decision isn’t always based on what the views of the child are, if it isn’t what is best for the child as their welfare is paramount over their views. In the X v Y 2018 case the husband and wife divorced and a residence and contact action was raised at the same time. The wife accused the husband of raping her and that he had been cruel to the children. Due to the

Georgia Temple mothers hatred for the father, the oldest child began to say she “hated him” too. The judge held that he did not accept this as the child’s view but more the view of their mothers and granted the father contact. The principle of this case is the views of the child cannot always be sided with by the judge, even if they are actually the child’s view, as their welfare comes first. This somewhat gives some control back to parents as it means the evidence and arguments put forward by the parent shows that it is in the best interest of the child. S 11(7)(a) also regards the minimum intervention principle, the court will only intervene if it is absolutely necessary. The court doesn’t want to take a child away from their family home or to change their living situations, they will only do so if it is absolutely necessary, such as the child was in danger. S 22(1)(b) of the Children (Scotland) Act 1995 states that the starting point is all children should be cared for in their own homes and services should be provided to support families and removal of the child should not be the first step, unless the child was in danger. This is to help put parents back on track and restore the control they have over their children. The Children (Equal Protection from Assault) (S) Bill has just passed the third stage of parliament is now awaiting royal assent. This will mean that it will be illegal for a parent to hit their child in Scotland, regardless if it is justifiable or not. Currently our law is Reasonable Chastisement under S 51(1) and (3) of the Criminal Justice (S) Act 2003. A parent is allowed to smack their child if it is justifiable. The court will take into consideration the nature of the smack or hit, its duration and frequency, the mental or physical effect it has on the child, the age of the child and the personal characteristics of the child. The court forbids any kind of act which includes a blow to the head, shaking or the use of an implement, these are automatically deemed assault. This protects children from being disciplined through violence. In the Stirling v S 2018 case a mother slapped a four year old in a pharmacy, was held justifiable assault as the mother was deemed one not likely to cause unnecessary suffering or injury. However, in the Peebles v McPhail 1989 case a mother slapped a 2year-old on the face during a temper tantrum, which knocked him off balance. It was held not justifiable, as to smack a child of two so hard to knock him over must have been done with some amount of force and the circumstances didn’t require it, therefore mother was convicted of assault. For years smacking was an accepted way to discipline your children, however, why should it be legal for children to be subject to assault when it is illegal for adults. Children are far more vulnerable and should be protected, especially by their parents. However, many parents do see this as an effective way to discipline their children and may argue that it is taking away their rights to parent their children, the way they choose. Parents may begin to feel restricted in what they can and can’t do and can and can’t say to their children in case they end up doing something illegal. Everyone has the right to respect for private and family life, everyone parents differently. However, Scotland are making this country somewhere where all children may be parented differently however, they are parented safely and respected. Everyone has opinions and views, why shouldn’t children’s be heard if it affects them, just as an adults would? Children

Georgia Temple should have the rights of adults which ensure them to be safe and respected, but also allow parents to be parents and not just adults whom they live with. Parents can be parents without smacking their children or disrespecting their views, just as children are allowed to be children, but, have certain rights for when they really need them. To protect them and to hear them....