Scottish Family Law Essay PDF

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Analysis of Section 11 o the Children (Scotland) Act 1995...

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Section 11 of the Children Scotland Act1 is a provision which allows for applications to be made to the court in relation to parental responsibilities, parental rights, guardianship and the administration of a child’s property. Such applications can be made by individuals who have parental responsibilities or rights, individuals who have no responsibilities or rights but claim an interest to the child, and the child himself.2 The idea of a claim of interest is something that sparks great controversy amongst many when considering who has it and the circumstances of how it came about. When the court considers any order from Section 11 they must consider the three basic principles. 3 This is the same for an application made by any individual, whether they are a parent or non-parent. The first principle is the welfare principle. This is the idea that the welfare of the child must be considered with the upmost importance.4 Since the Guardianship of Infants Act5 the welfare principle has been the leading argument for cases where parental rigths and responsibilities are disputed. The welfare principle has been described as; “A process whereby all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has to be understood.” 6 Where in England a statutory checklist can be found in the Children Act 7 to assist courts in their interpretation of the principle, in Scotland courts must look at the case law and take point from this. Secondly, the court should not make an order if the implementation will not make the scenario better or may cause harm. This principle is often referred to as the minimum intervention principle meaning that the order should not upset the status quo of the family unnecessarily. This principle is key in deciding the residence of children after divorce. Often the courts choose to allow the mother to assume de facto care as, since the divorce, she has done so in a competent manner. This means that the court often allows a working relationship to continue, rather than risk placing the children with, in some cases, a more equipped parent to maintain the status quo. A key example of this is the case of Breingan v Jamieson8 in which it was held that it was more appropriate to allow the child, who’s mother had died, to live with the aunt as despite a good relationship with her father, she was more accustomed to the aunt. “To remove the child to a totally different environment would be disruptive of her settled, happy life and detrimental to her best life.”9 The final principal is that the court must consider the views of the child with regard to their age and maturity.10 This is in correlation with the UN Convention of the Rights of the Child 11 as the Act allows for a child, aged 12 or more, to be presumed as sufficiently mature when forming an opinion. 12 The implementation of the 1995 Act means that courts must give the child the opportunity to express their views although it is still imperative courts consider how this view was obtained. In many cases, 1 1995 2 S.11(3)(a) 3 S.11(7) 4 S.11(7)(a) 5 1925 6 Per Lord MacDermott in J v C [1970] A.C. 668 at pp. 710-711. 7 1989 8 1993 S.L.T. 186 9 Per Lord Mclean in Breingan v Jamieson 10 S.11(7)(b) 11 Article 12 12 S.11 (10)

the child’s view is submitted as an affidavit as many children do not feel comfortable giving oral evidence in court as seen in the case of Macdonald v Macdonald.13 Despite this new requirement, the main concern of the courts must be the child’s welfare; “It cannot by any means be assumed that a child interests coincide with her wishes.” 14 As discussed earlier, non-parents may make an application under Section 11 to obtain the rights and responsibilities of a parent if they claim an interest to the child, but they do not naturally have these rights. This is because parents are the only individuals with parental rights and responsibilities according to the Act.15 When it comes to non-parents applying for residence of a child, it will be difficult for them to be successful over a natural parent, as seen in the case of Kyle v Stewart16 where the mother died and left instructions fir the child to be cared for by her sister which she did until a subsequent residency dispute that the father won, despite the principle of minimum intervention. However, in the case of Breingan v Jamieson17 the child was allowed to stay in the care of the child’s aunt and grandparents in order to maintain the status quo. In accordance with the Act, as witnessed in Breingan v Jamieson, when non-parents are awarded residency, they also assume all other parental rights and responsibilities in order to properly protect and guide the child.18 There are many conflicting views and arguments in the legal community over parental rights and responsibilities of non-parents especially siblings. A real issue occurs with sibling contact when one or both of the children are placed in care. The Children and Young People’s Commissioner has carries out extensive research into the contact of siblings within care and other broken family circumstances, and it shows that despite guidelines from organisations such as the United Nations 19 which states that children that have existing bonds should not be separated and should as far as possible be allowed to grow up in a family environment20, children are not provided with the proper support in order for them to maintain contact with their siblings. This is an issue when it comes to compliance with domestic law as it states that although the local authority which is responsible for the child must advocate for direct contact on a regular basis between the child and any person with parental rights and responsibilities, there is no imposition for personal relations and contact with siblings. In the case of D v H21 it was held that the brother could not seek a court order 22 for contact with his younger sibling as when the act was implemented it was not considered that it would be used to grant personal rights to persons under 16 who do not have the capacity to fulfil the responsibilities that come with it. This decision was made on competency of the child but was not followed in the subsequent case of E v E23 in which a sister was allowed to apply invoke an order for contact with her younger siblings who lived with the mother and step-father. In this case it was decided that they could grant the order in favour of the sister by intensifying the responsibilities of the mother and step-father to ensure contact between the siblings. These two cases although tackling the same issues come to vastly different outcomes which continues to confuse the community when it comes to the interpretation of Section 11. Those who prefer the outcome of E v E are more likely to be 13 1985 S.L.T. 245 14 Per Lord Stott in Fowler v Fowler 1981 S.L.T. (notes) 9 15 S.1 & S.2 16 1989 G.W.D. 14-580 17 1993 S.L.T. 186 18 S.11(12) 19 Guidelines for the Alternative Care of Children 2010 20 The United Nations Convention on the Rights of the Child 21 FamLR 41; 2004 SLT (Sh Ct) 73 22 S.11(2)(d) 23 2004 Fam LR 115

advocates for children’s rights as this case was very forward-thinking and more compliant with the United Nations right of the Child and has also provided authority for subsequent cases such as Children’s Reporter v D.24 There is also vast discomfort over the current interpretation of the act coinciding with grandparents and parental rights and responsibilities. A Scottish Government Survey found that grandparents in Scotland provide almost 75% of childcare.25 This has created great controversy as it would suggest that grandparents have a key role in the lives of many children and yet they have no parental rights or responsibilities. Although grandparents can apply under Section 11 for an order of residence it is still difficult for them as they are non-parents and usually these applications are strongly contested by any natural parents, as witnessed in the previously discussed case of Kyle v Stewart. Despite the many difficulties face by siblings and grandparents when it comes to applying for orders under article 11, there are many different ways in which the community in Scotland has come together to ensure that the current issues are remedied. The group “Stand Up for Siblings”, aims to protect children’s rights within Scotland and consists of many other child welfare and influential organisations. The group has acknowledged the misfortune that many siblings experience, in and out of the care system, and attempt to raise awareness for these issues in order to bring change. They are able to use pieces of writing such as European Convention of Human Rights, United Nations Convention of the Rights of the Child and the Human Rights Act to shape their arguments and continue to bring change. It is my belief that there should be more organisations, like Stand up for Siblings, as there are clearly some difficulties that grandparents and siblings face when they wish to make contact with children. The legislation is clearly flawed to favour a group of people who already have the capability to use the orders enacted by the court and do not give grandparents or siblings a fair chance when it comes to court orders. It would be highly beneficial to many bodies in Scotland if the legislation was reconsidered and scrutinised by a committee and information presented on how they believe the Act successfully achieves its purpose.

Bibliography  

http://www.parliament.scot/ResearchBriefingsAndFactsheets/S4/SB_1525_Grandparents_and_their_grandchildren.pdf Family Law by Lilian Edwards & Anne Griffiths (Greens Concise Scots Law)

24 2008 SLT (Sh Ct) 21 25 “Growing Up in Scotland”

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http://www.parliament.scot/ResearchBriefingsAndFactsheets/S4/SB_1525_Grandparents_and_their_grandchildren.pdf https://resourcecentre.savethechildren.net/library/united-nations-guidelines-alternativecare-children http://www.journalonline.co.uk/Preview/1011960.aspx#.XIlX0Sj7TD4 http://www.innesmackay.com/grandparents-rights-in-scotland.html https://www.standupforsiblings.co.uk/ https://hub.careinspectorate.com/media/109665/sccyp-child-contact-proceedings.pdf https://www.standupforsiblings.co.uk/about/ https://www.gov.scot/publications/review-part-1-children-scotland-act-1995-creationfamily-justice/pages/6/ https://www.gov.scot/publications/children-looked-local-authorities-legalframework/pages/33/ https://www.austinlafferty.co.uk/grandparent-rights.html https://www.cypcs.org.uk/policy/sibling-contact...