Family Law – Whole Course Notes PDF

Preview

Summary

Family Law – Whole Course Notes for Secion OneFamily Law Ordinary 2020-21 Lecture 1 LEGAL PERSONALITY1. PERSONALITY IN GENERALWhat is personality? Legal personality is the quality, character or fact of being a person as disinct from an animal thing or abstracion, the quality which makes a human bei...

Description

Family Law – Whole Course Notes for Section One Family Law Ordinary 2020-21 Lecture 1 LEGAL PERSONALITY 1. PERSONALITY IN GENERAL What is personality?  

Legal personality is the quality, character or fact of being a person as distinct from an animal thing or abstraction, the quality which makes a human being. The capacity of being a subject of rights and duties recognised by law.

Personality can be divided into two areas. (Natural persons and Juristic persons) 2, Natural persons     

All human beings are natural persons. The OED (Oxford English dictionary) says that “we’re all capable of being the subject of rights and duties recognised by law.” A natural person is someone who has rights and duties under the law and there is nobody who doesn’t have them. Everybody, everybody has rights and duties under the law. Now the rights of natural persons have been recognised in Scots law for a very long time. The position of Scots law was consolidated in a very famous case (Knight against Wedderburn). In Scots law we don’t use the word “verses/v” we say “against” this is for all modules.

Rights and duties under the law See: Knight v Wedderburn (1778) M 14545 W bought K as a slave when in Jamaica in 1766. W brought K to Scotland where K continued to be W’s servant. K learned to read and write. K married and wanted to move to Dundee. W claimed that he could not leave and should be detained as a slave. Held (Court of Session): Slavery not recognised by the laws of Scotland.

 



 

 

In 1778 this momentous moment suggests that Scotland does not have slaves. In 2020, the black lives matter movement has urged us to think upon this issue more than ever. The removal of statues erected to men who invested in and profited from the trading of human beings as slaves has gained massive support. In the 1790’s, almost 20 years after the knight v Wedderburn case the trafficking of human beings using British ships was still going. Henry Dundas as home secretary, not only blocked the abolition of slave trading but suppressed democratic voices of dissent. IF YOU THINK SLAVERY IS A THING OF THE PAST, YOUR WRONG. The Scottish government introduced the human trafficking and exploitation (Scotland) act in 2015. Where the offence of human trafficking is set out in section 1 of that act and includes the recruitment, transportation, harbouring or exchange of any person, with a view to that person being exploited. Section 4 of the act talks about slavery being forced by one person by another person. Whether or not the person consents to the action being taken place of the person does not exonerate the preparator being charged or found guilty of the offence.

Juristic persons However …? only human beings? domestic animals?

See: Animal Welfare Act 2006 (and Animal Health and Welfare (S) Act 2006 which sets out strict processes for the slaughter of animals).    

The answer to whether animals have legal rights is no. Animals do not have legal rights. It is not possible to give rights to a thing or a creature who cannot possibly challenge them. The giving rights is only possible if the living thing or creature can range some challenge. When we talk about animal rights, we are referring to the human being's duty to ensure that they are being well treated and not exploited. This is done by treating them well and not allowing them to be misused.

Wildlife? See: Wildlife and Countryside Act 1981 sets the legal protections for domestic and wildlife species that are not automatically protected by common law. The rubric to the Act states that it is: “An Act to ……… prohibit certain methods of killing or taking wild animals; to amend the law relating to protection of certain mammals; to restrict the introduction of certain animals and plants; to amend …….. the law relating to nature conservation, the countryside and National Parks and to make provision with respect to the Countryside Commission; to amend the law relating to public rights of way; and for connected purposes.” 

This act is aimed at humans. Not animals or birds or plants. They all have no legal rights. It is our duty as humans to protect them.

Buildings? See: Ancient Monuments and Archaeological Areas Act 1979 which makes provision for the protection of buildings of archaeological or historical interest. The rubric of the Act states that it: “… make[s] provision for the investigation, preservation and recording of matters of archaeological or historical interest”.  

As animals and plants etc do not have legal rights neither do buildings. Humans must take the responsible decision to protect and do what is best for the building.

All human beings? 

How would people who are unable to make their own decisions be able to have their own rights? Such as babies, people with disabilities, dementia etc.

See: *All Human Beings? Reflections on the 70th Anniversary of the Universal Declaration of Human Rights by Lady Hale, President of the Supreme Court at: https://www.supremecourt.uk/docs/speech181102.pdf 3. DURATION OF PERSONALITY    

Legal personality starts at birth. As far as Scots law is concerned, legal personality commences when a baby is born. The statutory authority for this is found in sections 13 and 14 of the Registration of Births, marriages and deaths (Scotland act 1965). These sections 13 and 14 impose an act for parents to register the existence of a child within 21 days of that child’s birth. (Section 14 (1)(b). This duty also applies to babies that were stillborn under section 13(1)(B). This applies to all babies but not a foetus where the pregnancy has been terminated. You don’t have to register that.





In the care of termination, which is governed by the abortion act of 1967, the registered medical practitioner carrying out the termination has a legal duty to complete certification forms issues by the department of health. Failure to register those forms amounts to a breach of the abortion legislation.

Rights of a fetus    



In 2018 Northern Ireland changed their laws of abortion and they then allowed it to be legal to have an abortion. This brough about the fact that Northern Irish laws continues to outlaw abortions. On this matter Northern Irish law was not governed by our 1967-abortion act. The northern Ireland human rights commission applied to the uk supreme court for a ruling on the matter. The UK government couldn’t make some rule in Northern Ireland and if they did, they would have restricted the right of a women to have an abortion was in violation of article 8 of the European Convention on human rights. So, since 2019 abortion is no longer a criminal offence in Northern Ireland.

Does a fetus have the right to life?     



At the present time a fetus does not have an independent legal right to be born. So, there can be no legal action brought by anyone towards the mother for terminating a pregnancy. A genetic father does not have the legal right to stop his partner or the mother of his child, from having an abortion. The legal right if a status was the subject matter of a very important case called Vo v France, (this is a French case so ur allowed to say “verses”). The European Court of Human rights said, “The life of the unborn child, although protected in some of its attributes, cannot be equated to post-natal life and therefor does not enjoy a right in the sense of a “right to life”. As protected by Article 2 of the Convention.” Some fetuses which are injured before being born and are then subsequently born alive, may have the legal locus to bring an action against the person or persons who caused the injury.

See: Abortion Act 1967, section 1 See: Vo v France 40 EHRR 12 o

Human rights and abortion? See: In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 (Abortion) (Northern Ireland) [2018] UKSC 27

or download at: https://www.supremecourt.uk/cases/docs/uksc-2017-0131-judgment.pdf (This is a very long, but very interesting read.) Nasciturus Principle 



In Scotland we have what we call the Nasciturus Principle. This is a latin tag which states “Nasciturus pro iam nato habetur quotiens de eius commodo agitur”. This means that an unborn child will be treated as born, if it is to his or her advantage to be so considered. In effect what the nasciturs principle does is that when a baby is born alive then his or her legal personality is back – dated to a time when he or she was still a fetus. If doing so is to the advantage of the newborn.

An example of when the Nasciturus Principle might be revoked is quite an old case called ohen v Shaw 1992 SLT 1022

See:Cohen v Shaw 1992 SLT 1022



Mum pregnant, dad killed in road accident as a result of third party fault. Mum claimed for damages for posthumous child.

Held: damages awarded under nasciturus doctrine. Stuart v Reid 2014 Rep LR 107



Grandfather, Mr H, was killed as a result of a road accident, third party fault. Daughter claimed damages for grandchild born five months after the death of Mr H.

Held: The posthumously born grandchild was awarded £14,000 in damages. 

Medical negligence during pregnancy?

Scottish Law Commission’s paper on Liability for Antenatal Injury. This can be found at: www.scotlawcom.gov.uk/files/5112/7989/6877/rep30.pdf Lecture One Part 3 2. AN INTRODUCTION TO CHILD LAW INTRODUCTION Historical treatment of children? 

The idea of childhood changes as society changes, and there was a French historian, Phillippe Aries, who was interested in the history in childhood and family and in 1963, In his book, “Centuries of Childhood, a Social History of Family Life”, he suggested that childhood was actually a relatively new concept. Because what had happened was that in medieval times and beyond, before and beyond, children were just seen as mini adults. And as soon as they reached an age where they could do a lot of things by themselves which was around the age of about seven. They were considered as viable human beings who could work for a living and the demands placed on them with the same demands as placed on adults. There was no protection or recognition that a child was a developing human being, and they were just treated like mini adults.

Evolution of “childhood” 

It wasn’t until the 16th and 17th century that the concept of ‘childhood’ started to emerge, and the protections started coming, the term welfare started emerging into legal parlance, and so on.

“Teenagers” 

Allegedly the term teenager was invented in America in the 1950’s as a marketing tag to pinpoint marketing at a certain age group of people towards those in their teenage years, and the word ‘teenager’ was born. (alleged so not 100% accurate).

Some interesting facts and statistics (taken from the National Records of Scotland website): https://www.nrscotland.gov.uk/statistics-and-data/statistics/statistics-by-theme/vital-events/generalpublications/vital-events-reference-tables/2019/list-of-data-tables#section5  

The population of Scotland in 2019 was roughly 5.46 million people, a slight increase from 2018. There were 49,863 live births registered in Scotland in 2019 compared to 51,308 live births registered in 2018, a decrease of 2.8% from 2018; over 30% of all births were to women between the ages of 30 to 34.

   

        

Just over 51% of all babies were born to unmarried parents, a slight increase from 2018. There were more males than females born in 2019: 51.5% of registered births were male and 48.5% female. The average age for a woman to give birth was 33 years old; There were 26,007 marriages in Scotland in 2019, a decrease of 1,518 from 2018. Of the 26,546, 912 were between same sex partners, a slight reduction from 2018. There were 83 civil partnerships in 2019 – 50 male and 33 female, an increase of 18 from 2018. The average age for getting married was 39 for men and 37 for women. The most popular name for boys is Jack – 12th consecutive year, then Oliver, James and Charlie. The most popular name for girls is Olivia – 4th year running, then Emily, Isla and Sophie. There were 472 adoptions in 2019, an increase of one from 2018. Of the 472 adoptions, 27 were by 2 males and 14 were by 2 females; 137 were by single males and 51 were by single females. There were 58,108 deaths in Scotland in 2019, a decrease of 0.7% on the 2018 number. More males died in 2019 than females. Statistics for the causes of deaths in 2019 are not yet available. The statistics for 2018 are that: cancer accounted for 28.3% of all deaths – still the biggest cause of death in Scotland. Dementia and Alzheimer’s disease deaths account for 11% of all deaths in Scotland. Females are twice as likely to die from dementia and Alzheimer’s. NB: As at 9th August 2020, there have been 4,213 deaths where Covid-19 was mentioned on the death certificate, i.e. death from Covid-19 or where Covid-19 was a contributory factor. The latest figures will be published on 16thSeptember 2020.

2. CLASSIFICATION OF CHILDREN The origins of Scots Law can be traced back for centuries.       

The terms “pupils” and “minors”, these date back to Roman law A “pupil was a girl under the age of 12, or a boy under the age of 14.” The difference in age was because girls were deemed to mature earlier than boys. The term minor relates to a girl aged 12 to 18. Or a boy aged 14-18. Pupils had no legal capacity to act on their own behalf. As it was their parents who had the legal capacity to act on their behalf. However, a minor did have the capacity to act on his or her own behalf in two situations. If the parents had died, then a minor could take his or her own decision's. Or the second scenario was where the minor was what was called “foresfamiliated”. This means that the minor was emancipated from parental authority for whatever reason. And the parents no longer had any control over the minor. The minor then leads an independent life.

Age of Legal Capacity (S) Act 1991 The terminology “pupils” and “minors” remained as common legal parlance until the passing of the Legal Capacity (S) Act 1991. This act was ground-breaking. Section 1(1)(a) of 1991 Act states that a person up to age 16 has no legal capacity to enter into any transaction.    

Section 1 splits people into two categories. Those under 16 who have no legal capacity and those 16 and over who have legal capacity. A transaction is anything from buying a mars bar or buying a ticket for a bus. These are all transactions and many under 16’s enters into those transactions. So how can the law work if section 1 (1) A says a person under 16 cannot enter into any transaction? Section 2 of the 1991 act goes onto identify expectations that’s in place under section 1A.

Children (S) Act 1995  

Section 1(2) sets out the definition of “child” A child means for the purposes of paragraphs (A), (B(I), (c) and (d). A person under the age of 16 is a child according to the 1991 act. A child according to this part of the 1995 act is someone under the age of 16.

“Legitimate” and “illegitimate” – see section 1(1) of the Law Reform (Parent and Child) (S) Act 1986  



“Legitimate” and “illegitimate” are both terms that we do not use for children anymore. They were terms that were banded another for decades. It refers to a child who was born into married parent's they were legitimate. If the child was born outside a married relationship, they were referred to as illegitimate. We simply don’t use that anymore. If you look at the parent and child Scotland act 1986, section 1. the first section is headed up “Abolition of status of illegitimacy.” It goes on to say that “No person whose status is governed by Scots law shall be illegitimate; and according to the facts that a person's parents are not or have not been married to each other shall be left of an account in determining the persons legal status or (b) establishing the legal relationship between the person and any other person.”

Brief Summary   

We know that a child in Scotland is a person under the age of 16. We know that the Children (Scotland) act is a very important piece of legislation. that we will go on to look at. A child under the age of 16 has no legal capacity to enter any transaction. Bear in mind that there are exceptions to that rule. And it allows a person under 16 to function in society as deemed.

Why is child law important?      

Child law is important to everyone. Whether ur a law student or your intending to pursue a career in the law. Or if ur a parent or the older brother or sister of a younger sibling who is under 16. It's important as gone are the days when children don’t matter. Gone are the days that if you are a child then you should be “seen and not heard”. Those days are gone. We know live in a world where children matter, children views and options matter and are considered. A child’s view should be taken into consideration with everyone else's view, it is straightforward. We need to live in a society that is knowledgeable of that fact and responsible in its duty to exercise the rights that children have.

Family Law Ordinary 2020-21 Week 2 Lecture 1 3. THE INTERNATIONAL DIMENSION (a) United Nations Convention on the Rights of the Child (UNCRC) (1959) 1.What is the UNCRC?        

After WW2, growing awareness in Europe that the status and protection of children required special attention. UNCRC sets out rules that govern the rights and protection of children. Before the UNCRC was set out there was no real recognition for the rights of a child, as children were just viewed at mini adults. It is clear now that children were a vulnerable group that needed special protection. In addition to that children were required to be adults, and if the adults were not available then they should be protected by the state. Therefor the convention has created govern rights and protections of children. The UNCRC was then opened for signature and ratification in November 1989. This meant that any countries that wanted could sign it and ratify it. The UK government within all four nations or four jurisdictions within the UK, ratified the convention in December of 1991. And every United Nations member in the state has ratified as well except for one state which is the USA. Even some non-state entitles have ratified in the convention such as The Sudan People’s Liberation Army.

Ratification    

Ratification means that the government that has ratified the convention has agreed to the articles of the UNCRC. But what it hasn’t agreed to is to be bound in law by those articles. The UNCRC is an international law, in the UK apply domestic law in our courts and for us to apply international law, we would first have to incorporate the convention into our law. At present, a child who believes that his or her UNCRC rights have been breached or violated in the UK has no recourse to law based on the UNCRC. There only recourse to law is recourse under domestic law.

The Scottish position?     

The Scottish government has incorporated the UNCRC into Scots' domestic law. The only one of the four jurisdiction which is intending to do that in the next parliamentary session. The Scottish government published the “United Nations Convention on the rights of the child (Incorporation) (Scotland) Bill on the Second of September. Its currently on stage one of its journey through parliament and there's a tota...