Article 3 ECHR

Prohibition of Torture

Article 6 ECHR

Right to a fair trial

Article 8 ECHR

Right to respect for private and family life

Article 3 UNCRC

Best Interests of the Child

Article 5 UNCRC

Parental guidance and evolving capacity (think GIllick)

Article 12 UNCRC

Respect for the views of the child

UNCRC (Incorp) (Scotland)

S9 - Child’s view on effectiveness of reliefs etc. S12 power for scottish commission to intervene…

Age of Legal Capacity (S) Act 1991

S1 - a person U16… S2: Exceptions to the general rule (commonly entered into) S3: Setting aside transactions

Law Reform (Parent and child)(S) Act 1986

Section 5 - A man shall be presumed to be father of a child (Criteria)

Law Reform (Misc. Provisions)(S) Act 1990

S70 - Court may request blood in civil procedures

Children (S) Act Section 11

Court orders relating to parental responsibilities. E.g., awarding/ depriving PRRs. Welfare of the child paramount. Who can Apply. Reasons PRRs may be extinguished. Protection from abuse. Child Rep. (12 y/o presumed…) - But remember this has changed

C(S)A 1995 S15 + s3

S15 States what a parent is. Legal mother

Human Fertilisation and Embryology Act 2008

S33: Meaning of mother

C(S)A 1995 Section 1 and 2

All PRRs (end at 16) - apart from Guidance. S6: Take account of views of child + age and maturity (rule of 12 years old done away with). Also Who has PRRs, Who can apply. Residence. Discipline. Education. Medical procedures. Contact

Age of Criminal Responsibility (S) Act 2019

Raised from 8 to 12 in 2019

Adoption and Children (S) Act 2007 S14(2)&(3)

welfare paramount. A child over 12 presumed… Must also consent

Actions in Relation to PRRs

Mother auto has PRRs (Virtue of C(S)A 1995, s3(1)(a)). Father auto if married etc. “Claims an interest” can make an application (e.g., genetic or emotional tie) SIO S(11)(2)(e). S11(a) deprives PRRs - but not if PRRs extinguished by by virtue of S5(4)

Nature of S11 orders

S11(2)(a) An order depriving PRRs. (b) Imposing PRRs. © A residence order. (d) Contact order. (e) An SIO

The Welfare Principle + Views of the Child

S11(7)(a) of the 1995 Act. S11(7)(b) (must be independently formed) see X v Y

Presumption Custody goes to mother

Hannah v Hannah “more in accordance with nature” Overturned by CSIH, child was happy at father’s (no presumption in favour of either parent in S Law). However, Status Quo (AY v MM. Reflects Min. Intervention

Factors in Applying Welfare in Contact Orders

Onus of proof (doesn’t matter - welfare) Views of the Children

Children looked after by the state.

PRRs being overriden. Child in need (s22 of 1995 Act). Looked after Child (s25 of 1995 Act)

Children’s Hearing System (S) Act 2011

CPO = S37/38. Reasonable Grounds = s38(2). Grounds must be stated - alongside evidence S37(5). CSO S64. Role of the Reporter = s22/s66/68

Child and Relevant Persons (Children’s Hearings) S200 of 2011 Act

Parent/Guardian with PRRs. Someone w imposed PRRs (s11(2)(b) of 1995 Act. A person with a residence order (with PRRs through this)

The Children’s Hearing

3 members. Not a court. Entitled to a fair hearing (A6) S122 CH(S)A introduced childrens advocacy services to support children in hearings

Grounds for Referral. Children’s Hearing

S67. Think Health and Dev. Sch 1 offence. Harmful conduct. Domestic abuse. Sexual offences act. Child has committed an offence. Marriage/ CP. School

Procedure in Referrals (Children’s H)

S67(2). Child and Relevant Person has right to attend all stages of hearing. (S74(2)) Grounds need to be accepted by child and RP. If not accepted - then Reporter makes application to sheriff. Onus lies on reporter to establish grounds

Children in need of CSOs

Section 83(2)(d) and S84

Critique of CHS

Introduced a welfare based approach to address Crim offences.

PRovides personnel w expertise, experience, to make decisions in the best interests of the child

May be argued the danger of such interventionist legislation is that insufficient weiht given to the rights of the chidl and their families

However, by insisting that a CH cant proceed where Child and RP don’t accept grounds. Grounds need to established to satisfaction of a sheriff. (Recognising the importatnce of family autonomy)

By imposing duty a duty to consult child at all important procedural stages, CHSA (2011) places emphasis on C’s rights

procedures cont to be scrutinised they do not violate A5,6,8 of ECHR.

However, local authorities dont always have resources to discharge this obligation

Marriage (S) Act 1977

16 years S1(1). Marriage notice S3(1)(a)(b) Marriage Schedule S6(2). Two over 16 witnessses S8. Effects or irregularities S23A. Forbidden Degrees - sch1. Objections s5(4). Incapacity and Error s20A(5). Duress - s20A(2)

Civil Partnership Act 2004

s95A for non-compliance (same as 23A). Capacity

Voidable Marriages

Sole ground for voidable is impotency

Capacity/ Eligibility to Marry/Enter a CP

Aged 16 - S1(1) of 1977, S86 of CPA 2004. CPA(S)2020 - diff sexes can register. Null if parties did not truly consent S20A 0f the 1977 act. Error restricted to nature of ceremony and identity of the other person. Duress S20A(2) of 1977 Act. CPA 2004 - s123 for void if ineligible. Consent s86. Durress and error S123.

Voidable Marriages

M v M - unable to consumate marriage. Psychological problems. Wife refused to support him. Held incurable, voidable granted

Aliment

For spouses- section 4(1) of the Family Law (S) Act 1985. S4(3) takes account if defender is giving money to a dependant third party. S3 deals with aliment/ periodical payments. S6 for interim aliment before divorce

Moveable Property

Scots law has a system of seperate property. S24 of FL(S)A 1985 states marriage shall not affect respective rights of the parties to the marriage… Scots law operates as if unmarried to try achieve equity

Household Goods + Exceptions

Section 25 of FL(S)A1985. S25(2) of the 1985 Act Equal shared not rebutted easily…

Furniture and plenishings in the Matrimonial Home

The Matrimonial Homes (Family Protection) (S) Act 1981. S3(2) s103(2) for CPA. Section 3: making an order for occupancy MHFPA1981

Grounds for Divorce and Dissolution

S1 of D(S)A 1976. S117 of CPA 2004. (a) Irretrievable breakdown. (b) Interim gender recognition certificatre

Irretrievable Breakdown

S1(2) of D(S)A 1976 and S117 (2) CPA 2004. Can be established by (a) The defender’s adultery (not for CP) (b) The defender’s behaviour (pursuer cannot reasonably be expected to cohabit).

© non-cohab with consent for one year

(d) Non-cohab for two years

Defences to Adultery

Lenocinium: S1(3) of DSA 1976 (pursuer promoted it) Condonation - if pursuer has condoned it

Behaviour (I B’down)

Must be since the date of marriage. S1(2)(b) of 1976 act, s117(3)(a) CPA 2004. Mental abnormality irrelevant

Non-Cohab one year (consent)

S1(2)(d) of DSA 76. S117(3) of CPA 04

Non-cohab 2 years

S1(2)(e) of DSA 76. S117 (3)(d) CPA 04

Interim Gender Recog Certificate

S(1)(b) DSA 1976. s117(2)(b) of CPA 04

Financial Provision on Divorce and Dissolution

FL(S)A 1985

Capital Sum + Periodical Allowances

s12(3) of FL(S)A 1985. FL(S)A s13(2) for PA. PA can only be made if justified over s9(1)(c-e)

S14 of FL(S)A 1985

Section 14. Sale for couples property. Valuation of property. Declarator of ownership. etc.

Principle 9(1)(a) - Fair sharing principle

The net value of M property or partnership property should be shared fairly between the parties to the marriage/ CP (FLSA1985). Remember - minus any outstanding debt

Relevant Date

Net value at the relevant date. When there is a sig. change. When cease to be living as husband and wife.

Matrimonial Property

S24 of FLSA 1985. Remember rules and Exceptions PLSSS

Pension sharing order

S8(1)(baa) of 1985 Act. (number of years of marriage divided by time in the scheme x the total in the pension)

Valuation Date : Wallis v Wallis problem (FLSA 1985)

S10(3A)

Special Circumstances to depart from Equal Sharing

S10(1), S10(6) lists them. Prenup, 3rd party etc., dissipation

Principle 9(1)(b) - Economic Adv.

“Fair account shall be taken of any econ adv. and econ disadv. Intended to compensate spouse/ CP whether before or during the marriage or partnership (e.g., looking after kids, investing in family business). S11(2) has econ dis/adv. sustained by one been balanced by the other

Principle 9(1)© - Economic burden

Looking after kids etc. Court considers aliment of child. loss of earning capacity etc.

Principle 9(1)(d) - Financial Dependency

To provide financial support for a spouse/cp who has been financially dependent on the other party to enable them to adjust to life after d/d for up to 3 years. Any provision under (d) is in addition to capital sum/ property transfer. P.A - lasts until youngest child turns 16

Principle 9(1)(e)

To be a long stop measure where adequate financial provision for a party cannot be acheived by applying the other principles

Minute Agreements

s16FLSA 1985 - courts have power to set agreements aside.Needs to be unfair and unreasonable at the time entered into

Cohabitation

s25-28 of FLSA 2006. Must consider evidential factors if couple living together as married

Cohab Property Issues FL(S)A 2006

S25(2) - provides criteria. Same rules for s26(4) excludes the same M property (pets, cars, monies). s27 owned in common…

The occupation of the family home

The M Homes (FP)(S)A 1981 two scenarios: one partner is entitled and the other isn’t. Both Entitled

Financial Provision where Cohabitation ends otherwise than by death

Section 28 of FLSA2006. Must be made within one year. UNJ ER? s28(2)(b) court can order periodical payments as well as capital sum. But doesn’t include adopted children… (accepted as their own)

Section 28 orders

28(3) doesnt take account of econ dis/adv. from before couple begin to cohabit. Before making capital sum order. court must consider matters from ss28 (5) and (6)