Family

CM v. S.T.S. [2008] CSOH 125

Wed, 03 Sep 2008 17:15:00 GMT

Proof:- In this action the pursuer sought an order in terms of section 28(2)(a) of the Family Law (Scotland) Act 2006 for payment of £50,000 and an order in terms of section 28(2)(b) of that Act for payment by the defender of £20,000. The parties cohabited as husband and wife from January 1998 and that there are two children from the relationship. The parties separated on 24 May 2006 and the children live with the pursuer and have regular contact with the defender. It was submitted on behalf of the pursuer that she had suffered economic disadvantage in the interests of the defender and the parties' children by giving up full time employment and losing certain opportunities and the defender had gained economic advantage by reason of certain benefits he obtained from the fact of cohabitation and the pursuer's looking after the children. This was the first time that the financial provisions of the 2006 Act had been judicially considered. Here the court considered the issues on the basis of the financial position of parties' as led in evidence. Under section 28(2)(a) the pursuer sought payment of a capital sum of £50,000, with interest and the court here carried out a balancing act based on the evidence at proof and the finacial contributions made by parties. Under section 28(2)(b) the court required to consider the future financial position of parties.

WA's Legal Representative v. The Highland Council [2008] CSIH 51

Thu, 28 Aug 2008 17:46:00 GMT

This was an appeal under section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004 against a decision of an Additional Support Needs Tribunal dated 16 January 2008 confirming a decision of the respondents dated 8 October 2007 that WA did not require a Co-ordinated Support Plan. On 8 October, the respondents wrote to the appellant and stated:- "The Educational Authority considered whether a Co-ordinated Support Plan was required.It was agreed at this meeting that WA did have Additional Support Needs but did not require a Co-ordinated Support Plan at this Time.The reasons for this are:- (1)WA does not require substantial or significant additional support provided by education (i.e. a continuing requirement for high level adaptation or elaboration of the curriculum and learning environment); and (2) WA's Additional Support Needs do not require a significantly high level of co-ordinated input to educational planning from one or more agencies in addition to education". It was that decision which the appellant challenged before the Tribunal. The Tribunal confirmed the decision of the respondents. It was submitted on behalf of the appellant that that the Tribunal had misdirected themselves in law in failing to ensure that they or the respondents had the information necessary to ascertain WA's additional support needs and had been unable to determine whether the test for a CSP, notably whether the child required "significant" additional support, had been met. It was submitted on behalf of the respondents that they had been entitled to reach the decision and no error of law had occurred. Here the court considered whether the Tribunal arrived at the correct conclusion on the basis of the information placed before it.

S v Children’s Reporter – Edinburgh Sheriff Court, 30 May 2008

Thu, 07 Aug 2008 11:27:00 GMT

The Appellant brought an appeal under Section 51(1) of the Children (Scotland) Act 1995 (“the 1995 Act”) against a decision of the Children’s Hearing making a supervision requirement in respect of the Appellant’s son, in terms of which the Appellant was to have no contact with his son. Shortly before the Hearing, an interim contact order had been made in the Appellant’s favour. That order was made in a Sheriff Court action brought by the Appellant against the child’s mother in which he sought a contact order under Section 11 of the 1995 Act; a declarator of paternity; and an award of parental rights and responsibilities. The Appellant had never been married to his son’s mother and was not named on his birth certificate. It was accepted at the appeal that the Appellant was the child’s father. The Children’s Hearing had been aware of the interim contact order but the Appellant had not been notified of the Hearing nor invited to attend on the basis that he was not a relevant person in terms of Section 93(2)(b) of the 1995 Act. The Appellant argued that he was a relevant person and also that, by virtue of Section 3(1) of the Human Rights Act 1998 (“the 1998 Act”), Section 93(2)(b) should be interpreted in a way that was compatible with his human rights under Articles 6 and 8 of the European Convention on Human Rights. He argued that his human rights had been breached by the Hearing. The issue for the appeal turned on the interpretation of the term “relevant person”. The Appellant argued that the existence of the interim contact order brought him within Section 93(2)(b) of the 1995 Act. The Respondent argued that the appeal was incompetent. The Appellant was not a relevant person because he had no parental rights and responsibilities in respect of the child. The existence of the interim contact order did not mean that he had parental responsibilities or rights. The Sheriff reviewed the relevant provisions of 1995 Act and the 1998 Act. He pointed out that the case raised an entirely novel point. Two conflicting decisions had been made on the question of whether the Appellant should have contact with his son and each decision had been made by a public authority, although on different grounds. The Sheriff concluded that the effect of the Sheriff’s order was to allow the Appellant to exercise the particular parental responsibility under Section 1(1)(c) of the 1995 Act “… to maintain personal relations and direct contact with (his son) on a regular basis” and the equivalent parental right under Section 2(1)(c). It followed, therefore, that when the Reporter, and the Hearing itself, came to consider the matter, the Appellant was “enjoying” parental responsibilities or rights under Section 93(2)(b) and, accordingly, he was a relevant person. The Sheriff reached this conclusion by applying the ordinary rules of statutory interpretation to the appropriate sections of the 1995 Act and without resorting to the duty imposed on the court by Section 3(1) of the 1998 Act. If this was not correct, it was possible to read and give effect to the term “relevant person” in a way which was Convention-compliant. Crucially, the Appellant had a court order allowing him contact with his son on an interim basis. That contact order provided a link between the Appellant and his son. If he could not participate in a decision about his son because he was denied access to proceedings, his Article 6 rights would be breached. The Sheriff allowed the appeal and repelled the Defender’s plea to the competency of the appeal. It was agreed that the case should be remitted to the Hearing for reconsideration.

R (on the application of Baiai and others) (Respondents) v Secretary of State for the Home Department (Appellant) and one other action (formerly R (on the application of Trzcinska and others) (Respondents) v Secretary of State for the Home Department (App

Wed, 30 Jul 2008 09:52:00 GMT

This appeal concerns the right to marry protected by art.12 of the ECHR, one of the articles to which domestic effect is given by the Human Rights Act 1998. More specifically, the appeal concerns the control of that right by the Secretary of State under and pursuant to s.19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The agreed issue is whether the scheme established by and under s.19 involves a disproportionate interference with (and therefore a breach of) the art.12 right to marry of any or all of the respondents. The Court of Appeal, affirming the first instance judge save on one point, held that it does. The Secretary of State challenges that conclusion.

Various combinations exist within the three respondents couples whereby there are persons who are unlawfully in the country, persons who are lawfully in the country, persons who are “overstayers”, and so on. All three couples have obtained Certificates of Approval to marry from the Secretary of State and have since married.

s.19(3) states that the superintendent registrar shall not enter in the marriage book notice of a marriage covered by the section unless satisfied that any party subject to immigration control fulfils one or other of three conditions. None of the respondents satisfied the first or second conditions with regard to entry clearance and being settled in the UK respectively. However, all respondents satisfied the second condition in that they all eventually received the permission of the Secretary of State to marry in the UK.

Therefore this appeal relates to s.19(3)(b) concerning the requirement to obtain the permission of the Secretary of State.

The Secretary of State argued that (i) the right to marry protected by art.12 is not an absolute right; (ii) conditions on the right to marry that served the interests of an effective immigration policy were justifiable provided that such measures satisfied the requirement of proportionality; (iii) such permissible restrictions on the right to marry might affect marriages which were genuine and not only sham marriages; (iv) the assessment of whether the s.19 scheme satisfies the requirement of proportionality involves consideration of whether it strikes a fair balance between the protection of individual rights and the general interests of the community; (v) the s.19 scheme involves an area of broad social policy where the judgement of the legislature and executive should be given considerable weight; and (vi) the s.19 scheme struck the requisite balance.

The House of Lords held that, apart from its discriminatory features, which the Secretary of State said she would remove, s.19, read alone, was not legally objectionable. It was open to a member state, consistently with art.12, to prevent marriages of convenience. There was nothing in s.19 which authorises or requires the withholding of permission to marry in the case of any marriage which is not a marriage of convenience. s.19 could be operated, consistently with its terms and with art.12, in a manner which required persons subject to immigration control to give notice of a proposed marriage, enabled an appropriate authority to investigate whether the proposed marriage would be one of convenience and provided for the withholding of permission only in cases where it appeared that the proposed marriage would be one of convenience.

The House of Lords unanimously dismissed the appeal.

Meena Raghunathan or Fairley v Alan Fairley [2008] CSOH 104

Thu, 24 Jul 2008 10:19:00 GMT

Debate:- In this action the question at debate was when did the pursuer and defender stop cohabiting? The parties separated at some point in 2006. They had a child who was born in 1997. The pursuer contended that they separated in June, the defender, April. The date of separation was important to the pursuer's action because if the parties were co-habiting after 4 May 2006 the pursuer's claim on the defender would be restricted by virtue of the operation of Section 28 of the Family Law (Scotland) Act 2006 which deals with the financial provisions of parties where the cohabitants cease to cohabit otherwise than by reason of the death of one (or both) of them. Here the court considered the question of at what point did the defender leave the pursuer for good following the leading of evidence from both parties.

AM v IM – Edinburgh Sheriff Court, 26 June 2008

Wed, 16 Jul 2008 18:54:00 GMT

The Pursuer and the Defender have a child, GM. When they separated, The Defender obtained full parental responsibilities and rights in relation to GM. The Defender decided that she would move to Spain to live permanently, taking GM with her. The Pursuer raised proceedings for inter alia interdict. The Defender craved a specific issue order under Section 11 (2) (e) of the Children (Scotland) Act 1985 allowing her to move GM from the UK to live permanently in Spain. She was ordained to lead at Proof. Having heard evidence, the Sheriff indicated that there appeared to be no Scottish authority setting out the law and the factors to be considered in "emigration" cases. He was advised that there were no cases of a parent seeking to take a child to a non English speaking country, although the Sheriff was aware of one unreported case. It was agreed that the test was the best interests of the child. Section 11 (7) of the 1995 Act listed three factors that the Court had to consider, although those were not the only factors. The Sheriff listed 11 factors which he considered should be weighed in the balance. He went on to consider each of those factors in light of the evidence which he had heard and came to the conclusion that it would not be in GM’s best interests to make an order to enable the Defender to take him to live in Spain. The Defender did not speak Spanish and nor did her partner or GM. GM would have to go to a Spanish speaking school. He had educational difficulties and needs and he received support at school in Scotland. Neither the Defender nor her partner had a job in Spain. GM’s close relationship with the Pursuer andother relatives would be adversely affected if he moved to Spain. GM had made it clear that he did not want to move to Spain. It appeared to the Sheriff that the proposed move had been ill thought out, or at least not properly thought through or well planned. He did not think that the Defender’s proposed move could be described as reasonable.

Margaret Mary McGhee or Sudjic or Campbell [2008] CSOH 101

Tue, 15 Jul 2008 17:35:00 GMT

Matrimonial:- On 23 June 1990 the parties married. At that time, the pursuer was aged 49 and had been married before. She was a school biology and chemistry teacher by profession until she retired in 2000. The defender was 46 and had never married and had been living in Aberdeen as a pharmacist, operating two shops. He was comfortably well off as a bachelor. In this action the pursuer sought capital sum of amounting to one half of the matrimonial property notwithstanding the capital which the defender had at the commencement of the marriage. It was maintained that the pursuer had made a significant contribution to the pharmacy and the development of the properties. It was also maintained that the defender had not suffered any economic disadvantage in moving to Coupar Angus and had made no significant contribution to the pursuer's sons. It was submitted on behalf of the pursuer that equal sharing was the appropriate result. It was submitetd on behalf of the defender that, having regard to the source of the funds or assets, special circumstances existed to justify an unequal sharing of the matrimonial property. It was submitted that any contributions made by the pursuer were heavily outweighed by those of the defender, especially in terms of the pharmacy business existing at the time of the marriage and built up by the defender since then. Here the court considered whether special circumstances existed to justify an unequal sharing of the matrimonial property.

LINDA COLLIE PATERSON OR BAIN v. RODERICK HAY BAIN 2008 CSOH 95

Thu, 03 Jul 2008 14:54:00 GMT

Preliminary proof in respect of when the date of cohabitation ceased between parties. S10 (7) Family Law (Scotland) Act 1985. Whether there had been a period of regular reconciliation. Defender stated that the pursuer's repeated assertions that the marriage had broken down were inconsistent with assertion of continued married life. Relevant date disputed.

In re P and others (AP) (Appellants) (Northern Ireland), [2008] UKHL 38

Wed, 18 Jun 2008 07:10:00 GMT

The question in this case is whether it is consistent with Convention rights as defined in s.1(1) of the Human Rights Act 1998 for a couple to be excluded from consideration as adoptive parents of a child on the ground only that they are not married. The woman is the natural mother of the child. The man is not the father but he and the woman have been living together for some years and treat the child as a member of the family.

The legal obstacle to their adoption application is art. 14 of the Adoption (Northern Ireland) Order 1987.

The appellants rely upon art.14 of the ECHR, which provides that the, “enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The appellants argue that marriage (or its absence) is a status and that art.14 discriminates them in respect of the right set forth in art.8, namely, respect for their private and family life. The Crown, which has been joined as a respondent to the application, submits that being unmarried is not a status within the meaning of art.14 of the ECHR. If that is wrong, the Crown accepts that the right to adopt a child falls within the ambit of art. 8, but denies that the 1987 Order is discriminatory. It says that there are relevant and material differences between married and unmarried couples which justify the distinction.

The Family Division accepted that being unmarried was a status but said that the difference in treatment could be justified as being in the best interests of children.

The Court of Appeal did not think that being unmarried was a status because unmarried people were a formless group which might vary widely in their relevant characteristics. On the assumption that it fell within art.14, the Ct of A agreed with the judge that the positions of married and unmarried couples were sufficiently different to justify the discrimination.

The House of Lords agreed that being married is a status. Therefore, if being married is a status, it must follow that not being married is a status. The question, therefore, was whether unequal treatment can be justified. Arguments were put forward that this unequal treatment was justified, for example, on the grounds that statistics show that married couples, who have accepted a legal commitment to each other, tend to have more stable relationships than unmarried couples, whose relationships may vary from quasi-marital to ephemeral. So, as the Family Division highlighted, the difference in treatment had a legitimate aim, namely, the best interests of “children” and that the interests of the applicants must be balanced against the interests of “the community as a whole".

The House agreed that these were good arguments at the macro level. Therefore, if it was rational to adopt a “bright line rule” to determine what class of people should adopt children, there would be much to be said for art. 14. The question is whether, in this case, there is a rational basis for having any bright line rule.

The House held that such a rule is quite irrational. A bright line rule cannot be justified on the basis of the needs of administrative convenience or legal certainty, because the law requires the interests of each child to be examined on a case-by-case basis. It is one thing to say that, in general terms, married couples are more likely to be suitable adoptive parents than unmarried ones. It is altogether another to say that one may rationally assume that no unmarried couple can be suitable adoptive parents.

On the question of whether the House’s conclusion should be affected by the jurisprudence of the European Court of Human Rights, it seemed likely to the House that if the issue in this case were to go to Strasbourg, the Court would hold that discrimination against a couple who wish to adopt a child on the ground that they are not married would violate art.14.

Finally, the House held (by a majority of 4 to 1, Lord Walker of Gestingthorpe dissenting) that, notwithstanding art.14 of the Order, the appellants were entitled to apply to adopt the child and that it was unlawful for the Family Division to reject the applicants as prospective adoptive parents on the ground only that they were not married to each other.

C. v. C. for an Order under the Child Abduction & Custody Act 1985 [2008] CSOH 42

Wed, 12 Mar 2008 11:22:00 GMT

Petition for An Order under the Child Abduction and Custody Act 1985:- The petitioner, a French woman, was married to the first respondent and together they had four children, aged 9, 11, 14 and 17. Here the petitioner sought an order for the return of the three younger children from their father, the first respondent, who lived in Dundee together. Following an acrimonious divorce on 12 February 2002 an order was pronounced by the French Family Court providing that both parents were to exercise custody jointly but that the olderst child was to reside with his father and the other three children were to reside with their mother. On 28 October 2003 decree of divorce was pronounced and the residence arrangements for the respective children were affirmed and both parents were prohibited from removing the children from French territory without the consent of the other. On about 3 July 2005, the first respondent, who had been unhappy with the terms of the settlement imposed by the courts, removed all four from the jurisdiction of the French Courts and flew them to Switzerland and then on to Bangkok. The first respondent and the four children remained in South East Asia until December 2007 when they returned to Dundee. Throughout this time there was no contact between the first respondent and the petitioner advising her of the childrens' whereabouts. Throughout that time the petitioner sought to establish their whereabouts, often using the internet to contact schools, churches and other organisations across the world in a bid to locate them. In France criminal charges were brought against the first respondent, and his sister who had helped him, in light of the children's removal and on 20 November 2006 he was found guilty, in his absence, and sentenced to a period of 30 months imprisonment. The first respondent was arrested and appeared at Edinburgh Sheriff Court on 22 November 2007 when he did not consent to his extradition and was released on bail. The full hearing on his extradition is set for 10 March 2008. In the application here the first respondent argued that the court should refuse to make an order for the return of the children as all of the children were now settled in their new environment in Dundee and their wishes should be taken into consideration. It was submitted on behalf of the petitioner that it had not been demonstrated that the children were now settled in their new environment, in terms of article 12 of the Convention and sought an order for the return of each child to France. Here the court considered (1)the meaning of the phrase "the child is now settled in its new environment" and (2) if it was proved that the children were so settled did the court nevertheless retain a residual discretion to order the child's return. The court here looked at the conduct of the first respondent in dermining if the children were settled in their new environment.

KG and JG v Jim McClafferty, Authority Reporter SWA50/07 & SWA51/07

Thu, 24 Jan 2008 14:45:00 GMT

Appeal - This was an appeal by the parents of two children against a decision of the learned sheriff who held that the grounds of referral had on the evidence led before him been established. The child was the son of the appellants. The learned sheriff found as a matter of fact that the child was under the supervision of the Children's Hearing. Grounds for referral were established at Glasgow Sheriff Court. The child was on the child protection register under the category of emotional abuse. The application for a stated case posed nine questions, the nature of which indicated that the attack was directed against the restriction in the ambit of any evidence which Dr Herbison and Professor Golding might give. The Sheriff Principal considered this and was also asked to comment on the decision of the Scottish Legal Aid Board not to grant legal aid to the parents for this appeal

Petition of WT for and Order under Child Abduction & Custody Act 1985 [2007] CSOH 72

Wed, 04 Apr 2007 23:00:00 GMT

Petition for An Order under the Child Abduction and Custody Act 1985

Peter Robertson Marshall v. Mrs Kethleen Aileen Elizabeth Armstrong or Marshall [2007] CSOH 16

Tue, 06 Feb 2007 00:00:00 GMT

Proof - Matrimonial

N.S.A. v. M.A. or N. [2006] CSOH 194

Fri, 15 Dec 2006 00:00:00 GMT

Motion for Residence Order

McG v. McG [2006] CSOH 122

Tue, 08 Aug 2006 00:00:00 GMT

Proof - Residence Order

Eleanor Jane Reddie or McKay v. Anthony John McKay

Thu, 29 Jun 2006 00:00:00 GMT

Appeal to Sheriff Principal - Family Law (Scotland

Eleanor Jane Reddie or McKay v. Anthony John McKay

Wed, 28 Jun 2006 23:00:00 GMT

Appeal to Sheriff Principal - Family Law (Scotland

R.H. V. V.H. for An Order Under the Child Protecion and Custody Act 1985 [2006] CSOH 70

Thu, 04 May 2006 23:00:00 GMT

Petition for an Order under the Child Abduction an

Application in Respect of Mr D.M

Fri, 28 Apr 2006 00:00:00 GMT

Adults with Incapacity (Scotland) Act 2000

Application for Guardianship in Respect of Mrs A

Thu, 27 Apr 2006 20:00:00 GMT

Adults with Incapacity (Scotland) Act 2000

Scott Andrew Crerar v Mary Theresa Bracken or Crerar

Tue, 25 Apr 2006 00:00:00 GMT

Proof - Matrimonial and Children (Scotland) Act 19

The Fife Council v X

Thu, 22 Dec 2005 00:00:00 GMT

Incapacity (Scotland) Act 2000 - Application in te

Alexander McShane v Elizabeth Currie Dury

Mon, 12 Dec 2005 00:00:00 GMT

Children (Scotland) Act 1995 - Appeal to Sheriff P

Application in Respect of FW

Tue, 29 Nov 2005 00:00:00 GMT

Application to Sheriff Court to grant an order under S.7(1) of the Adults with Incapacity (Scotland) Act 2000.

Mary OMahony or Connolly v. John Joseph Connolly

Fri, 18 Nov 2005 00:00:00 GMT

Divorce/Appeal Against Sheriffs Interlocutor

A.J v F.J

Thu, 28 Apr 2005 23:00:00 GMT

Wrongful Removal Of Children: