Family Law - Lecture notes All PDF

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Table of Contents LECTURE 1: Legal personality............................................................................................................ 2 LECTURE 2.........................................................................................................................................

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Table of Contents LECTURE 1: Legal personality............................................................................................................ 2 LECTURE 2............................................................................................................................................ 3 LECTURE 3: Child law.......................................................................................................................... 6 Lecture 4: (Katy McFarlane) Age and Legal Capacity Scotland Act 1991......................9 Lecture 5: Parenthood................................................................................................................. 10 Lecture 6: Assisted Parenthood through medical reproductive...................................13 Relationship between assisted reproduction and parenthood:....................................14 Lecture 7: continuation….......................................................................................................... 17 Child Law, Parental responsibilities and Parental rights................................................17 Lecture 8 : Prenatal Rights and Responsibilities continued ----....................................18 Lecture 9: Looked after and accommodated Children.....................................................20 Lecture 10: Children’s Hearing System.............................................................22 Lecture 11: Children’s hearing Act (page- 31)...............................................24 Lecture 12: Families and Adult Relationships................................................27 Lecture 13: Adult relationships consequences ( ****no recording read book from chapter 11****).............................................................................................................................. 30 Lecture 14: Continuation (Domestic abuse and Family Protection)32 The Consequences Of Marriage And Civil Partnership.....................................................33 Lecture 15: Marriage and Civil Partnership (continuation) ** rec all**.....................34 Guest speaker 16: The Law of Cohabitation...................................................36 Lecture 17: (continuation)........................................................................................................................ 39

Alison Onyebujoh Family Law : LECTURE 1: Legal personality Legal Personality: the ability of any legal person to enter into rights and obligations. The sum total of individuals legal advantages and disadvantages. The importance: provides access to rights and become subject to certain duties. EG) Right – not be to assaulted …… Duty not to injure others. 

Through legal personality we have access to and become the subject of law. Law of contract, criminal law, public law.

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LP quality attributed by legal rules of being a legal person thus representing an entity to which legal rights and obligations are attached. = its Essential

How do we acquire Legal Person? 1) By being a natural person. Only human being, eg, not animals, or land or ancient monuments. (but can be subject to legal regulation) 2) Or by being a eristic person (e.g. partnerships, companies can be attributed legal personality) When does legal personality come into existence: rights commerce at birth when a certificate of live birth is logged. Prior to birth the fetus has no legal rights. Attempts made to challenge this: case of Vo vs. France. - DOESN’T mean new born child has the full range of legal capacity of an adult.  legal personality is not legal capacity What is the position of an unborn child/fetus? *Debates on religious, medical and moral approaches on when life begin are not necessarily in tune with legal approaches and the rule the LP commences at birth* 

Unborn child has No legal rights  Vo vs. France o

No legal personality, cant be held for homicide

o

She tried to shit legal personality to fertilization not birth

o

Court argued that there was a remedy under civil law that would entitle her to damages suing the doctor instead of homicide under civil law. By refusing the ‘remedy’ the French government where not in breech or Art. 2

EXCEPTION TO RULE: Nasciturus Principle (fiction)  an unborn child, provided its born alive, can be attributed a legal personality prior to that time provided it to its advantage. USEFUL WHEN: EG; family, husband dies and leaves children property in will, according to

principle, unborn child can be deemed to have earlier date if that works to its advantage. Ie share in estate of deceased Can child and parents sue for anti natal injury? Scottish law commission: recognize a child that if a child has been born alive, it can sue a third party for damages who negligently caused anti-natal injuries that when they were born alive may have caused them a disability. Right is to the child and Parents. Does this include right to sue parent: e.g.) fetus alcohol syndrome. Scottish law commission said, in theory, yes? But realize the court might not allow such and action, it would create conflict of interest… what kind of family harmony does that suggest. In England they said NO action can be brought against mother. Does this include an action for wrongful life? (Meaning through negligence of third party, the child parents weren’t giving opportunities of terminating the pregnancy THEREFORE, child / parent seeks damages for impaired existence they are ‘forced’ to lead. 

--------- e.g. failure to detect abnormalities of the fetus. (McKay v Essex area health authority): o

Doctor failed to detect measles, mother sued for negligence on the part of doc. and other claims including claim of wrongful life.

o

Court not prepared to recognize the claim, because doctor was under the duty of care not to harm it.

o

Problem is doctor didn’t injure the child. Measles harmed it.

o

Court said doctor is never under duty to terminate fetus’s life.

o

LECTURE 2

Wrongful pregnancy- unplanned conception, which has occurred, as a result of another’s negligence: EG. Failure to carry out sterilization of man or women - is seen as a negligent act. (Small % vasectomy of men can reverse itself  therefore its the duty of doctor to inform patient that there is risk of reversal  failure of making someone aware is seen as negligence so if conception happens, he could give rise to claim for damages)

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Duty of medical professional: must have competent clinical expertise & explain risk or shortcoming of risk of procedures. = Standard against which they’ll be judged

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If there is negligence what do the damages cover??

Pregnancy itself: o

Damages for pain and suffering of gestation - shock and distress

o

Loss of earning (e.g. leave work early)

o

Any addition pregnancy expenses

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Can the damages cover the upkeep of the child: Should upkeep of child ever be awarded? and if so, should condition (health / disabilities) of the child affect the amount being given?

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Bodily integrity being invaded: 15,0000 pound award given to all women. (e.g in Rees vs Darlington How far do damages cover? Case of Udale: Doctor negligently carried out sterilization  unwanted pregnancy  wealthy baby is born  judge needs to decided if damages can be awarded and how much they could cover? --------> Judge said pain & suffering + loss of earing could be awarded but rejected upkeep charges because he said joy of having a child and benefits it brought should be offset by the inconvenience and financial disadvantages.

o

And Case of Imeh: also negligent sterilization but court of appeal disagreed to Udale and awarded for cost or rearing child.

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McFarlane v Tayside Health authority. Couple had vasectomy  wife became pregnant  gave birth to healthy child.  Sued for loss of the board’s negligence. Claimed: 1) Damages, pain, shock, loss of earning, and financial costs of bring up the child  inner house judge said birth of child transcended any losses of having a child.  Appealed again  inner house 3 judges: HELD: there was a loss as a result of negligence so upkeep were seen as recoverable.  Health board argued that she should have had an abortion  court said no; this didn’t break change of causation.  They said even if birth of a child can brings joy, you couldn’t off set the joys of parenthood against financial loss because then why do we have an abortion act. So cant be the case that it’s always a joy to have a child. Joy of parenthood seen as an intangible consideration.  Supreme court saw the claims as economic loss, and aren’t recoverable. Most agreed that where there is negligence, someone should be liable but in the case of economic loss (upbringing) there’s another consideration: is it fair just and reasonable to impose an award?  Allowed to recover pain and suffering fees but NOT claims for upkeep of child because they said in the case of economic loss is it fair, just and reasonable? No, because they had a healthy child.

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There isn’t always one answer*  case was seen as unsatisfactory because courts disagreed.

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Questions are: does the decision cover all births where children live (no cost of upkeep), Is it only restricted to births of healthy and normal children? If so does this mean that a child born with disabilities costs of upkeep can be an recovered? And if so is this just cost concerning the disability or all cost?

Wrongful Birth: Parents of child born with disabilities can raise an action of negligence against doctor / genetic counselor who 1) failed to advise on risks of illness in child when test were carried 2) failed to interpret results correctly, depriving them of the opportunity to decided where or not to terminate pregnancy. Mclelland v Greather Glasgow Heath Borad: child born with down syndrome  claimed that negligently failed to diagnosis when the could have still terminated  argued that they would have terminated both parents sued  both parents were awarder damages under this head of pain and suffering and shock for the first time and upkeep

Anderson v Forth Valley health board  Both parents sued  personal injuries  awarded upkeep for the who1bothle life of the child. Rand v East Dorset Health Authority: lost opportunity for early termination.  Claimed that they were faced with cost of bringing up disabled child due to negligence + loss of profit.  COURT: said only losses were losses related to disability and not full cost of raising child. Linked damages to parent’s income instead of needs of child RECAP: In all cases of wrongful birth, where parents sue for loss of right to terminate pregnancy due to fetal abnormality, prior to MCFARLANE, the trail courts allowed reasonable maintenance (upkeep) costs. But after Mcfarlane, this is no longer allowed expect for certain cases that allow the cost of upbringing of child in the case of disabilities. Wrongful pregnancy post McFarlane where child had disabilities: Parkinson v St James and Seacroft University Hospital [2002] Botched sterilization  Child born with disabilities as a result of negligence  Mum sues NHS Trust for costs of normal upbringing and extra costs necessary because of disabilities. Held: Only extra costs attributable to disabilities payable. They said only in a case of a significant disability. Lady Justice Halle’s point of view: argue that disabled children have a right to extra costs to put them in the same position as healthy children. And believed there should be compensation for invasion of bodily integrity (having a baby) Wrongful pregnancy resulting in disabled parent giving birth to a healthy child: Rees v Darlington Memorial Hospital Trust: Ms R was disabled through blindness  She did not want any children and arranged to be sterilized  After a botched sterilisation operation she gave birth to a healthy boy  Ms R claimed damages for the costs of her son’s upbringing. Held: HL recognized that Ms R was no longer able to live her life the way that she had planned, and, for this inconvenience, she was awarded £15,000 by way of a “conventional” award. Recap: What are the Legal options for wrongful birth and wrongful pregnancy? -

Damages should never be awarded

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Damages should always be awarded

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Should the blessing of parenthood should be offset against the economic loss and the damages adjusted accordingly.

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Should a distinction be made between a healthy and disabled child? – (Damages only awarded for extra costs associated for that disability. Currently law stands: no compensation for cost and upkeep of healthy child, conventional award can now be even (bodily integrity).

-

If this distinction is made, damages should be recovered a) for full cost of maintaining disabled child or b) only for the extra cost associated with the child’s disability.

(My opinion: yes, damages should be available for the cost of up keep for a healthy child, while its true that there are major joys attached to having a child, cost are undeniable. Worse still if the child has a disability: they should be compensated to a point where they have equal opportunities of a healthy child. No difference should be made for cost of uprising and cost of disability, where’s the difference?)

Wrongful life: Where the person who has been born with disabilities and is suffering as a result raises an action against the health authority on the grounds that, if the extent of the disability was known prior to the birth, then the mother should have been given the option of termination. Is not living better than living a life with severe disabilities??

LECTURE 3: Child law There is no official definition of a child under Scots Law Who are children? 

Child does not have same legal standing as an adult: distinction made between rights of adults and children.

There is therefore a clear

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Adults have full legal capacity; children of varying ages have varied legal capacity.

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Any age: o

You hold rights, e.g property rights of a deceased parent

o

Can make claim to human rights and protection from abuse and neglect.

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New born can do nothing to enforce right: my acquire property but cannot sue, cannot wave right to portion under the will, cant make contracts cant buy a house/ make a will (under 12)

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Child without legal capacity = gap is fulfilled by parent or legal representative Legal personality doesn’t mean active legal capacity- (the power to enter legal agreements on ones own)

Historical treatment of children The view of children is a cultural construction: eg 

Philip Ary “centuries of childhood” argued that the concept of childhood is a modern phenomenon- subject to change overtime. The idea that children are fundamentally different to adults is not an inherent one but one that is culturally constituted: there have been different conceptions

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e.g. Medieval European society, there was no conception of childhood, they were miniature adults treated as small adults and thus no protected from the lives of adults.

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Contemporary society draws a sharp distinction between adults and children.

When should childhood give way to adulthood – this has direct influence on how law should restrict, protect and empower children. Eg hours and conditions of labor 

Conception of children are not fix, they always in a state of evolution ( as showed by scots law) as ideas of children change so will our ideas of their legal capacity.

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Recent years have seen cause to reconsider the status of children; the child is a person not an object of concern”

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Ideas of competency of children have changed, giving rise to tension between what is perceived as protective rights between parents/ guardian and how those are to be viewed – considering the emerging independent rights of the child. When do parental rights give way to children’s rights that the can enforce?

Some Facts: There were 55,098 births registered in Scotland in 2015 and 51.2% of registered births were to unmarried couples – 4% more than in 2005: majority of children born to unmarried couple now

Scots law in dealing with children: 

Shows an appreciation that the change from child to adult happens incrementally

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Roman law: Pupil and minors were seen to have different capacities. Pupils had no legal active capacity whereas a minor had adult LC but only exercised with consent of guardian who had to concur.  This law has been replaced with, Age of Legal Capacity Scotland Act 1991: 16 is the bench mark. Meaning no legal capacity under 16 and full legal capacity over 16

How have conception of children changed: UNCRC 

Increasing regard give to international human rights standards: UNCRC and European convention of human right. o

UNCRC is child centered, but is not binding by domestic law. Applicable during peacetime and war. Article: 3 (right concerning civil status of children: right to preserve ones identity) 2, 12(child’s right to participate in all judicial and administration proceeding affecting the child)

How does the UNCRC affect Scots law? o

Not directly applicable in UK. But accepted that every attempt will be made to honor the international obligations: eg) where legislation is ambiguous it will be interrupted in a way that should lead to compline with international standards.

o

Mechanisms in place to make scots legislation in line with UNCRC: eg) Commissioner For Children And Young People Scotland Act 2003.  Provides that the commissioner has regard for any relevant provisions of the convention. + Regard is to be had in the best interest of the child s a primary consideration. + Regard of the views of children.

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Scots law goes further  Children Scotland Act takes the convention “best interest of the child” act further by stating that it is paramount to the life of the child.

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European Convention on Human Rights: not centered around children but applies to all people.

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o

Article 3: right to freedom of all children against ill treatment.

o

Article 6: Right to a fair trial (S v Miller (2001) )

o

Article 8: Right to respect in public and family life. States the family has the right to act as they believe but the state has the right to intervene and derogate from that right.

o

Article 5: acknowledges that while parent have a responsibly for the guidance of children, it must be in line with the evolving

Issues: children rights are often infringed not by state but by people who are meant to protect, guide and represent them (i.e parents).  Their rights and freedoms are dependent on the assistance and attitudes of adults (parents & guardians).  The states can then intervene where the rights of individuals are threatened by actions of other individuals. o

EG) right to choose own religion in Article 9 CONFLICTS with parents right to insist that the child’s brought up under family creed in Article 8

o

EG) Childs right to freedom from ill treatment CONFLICTS parent’s rights to respects for privacy and family life.

The Welfare Principle Under Scots Law

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Welfare of the child is the paramount consideration in private law

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