Family Law: Level 1 written assignment Matric Number: 0407404 Word Count: 3,236 (Essay + footnotes)

Problem 1

There is little uncertainty regarding the mother of a child, a concept largely unchanged since Roman times.1 Paternity is more complex and the Scottish legislature has attempted to minimise uncertainty by affirming certain presumptions.2 Angus shall be presumed to be both Harry and Jamess father as both boys were born while Karen and Angus were married,3 despite the fact that Karen hasnt registered and acknowledged Angus as the father.4

To establish parentage, Karen or Phil will have to rebut this assumption by raising an action for declarator of parentage or non parentage.5 Courts will grant this decree if the grounds of action are satisfied by sufficient evidence,6 nowadays the results of DNA testing.7 This would require a DNA sample to be given by James to be compared with Anguss. The court cannot compel James to give blood, despite the fact that this test is conclusive,8 preserving an individuals right to physical autonomy under the European

1 2

Mater simper certa est etiamsi vulgo conceperit. Justinians Digest (D.II, 4,5). Law Reform (Parent and Child)(Scotland) Act 1986 s 5 3 LR(P&C)(S)A 1986 s5(1)(a) 4 LR(P&C)(S)A 1986 s5(1)(b) 5 Family Law (Parent & Child)(Scotland)Act 1986 s 7 6 C(S)A 1995 s8(1). 7 Edward and Griffiths. Family Law, p.83 8 Torrie v Turner 1990 SLT 718 affirming the principles of Whitehall v Whitehall 1958SC 252

Convention of Human Rights. James is currently not of age to give consent,9so consent would have to be sought from Angus and Karen10 unless a medical practitioner deems James capable of understanding and appreciating the consequences of the procedure11.

Virtual certainty makes the lack of power to order the taking of DNA samples less justifiable, acknowledged by the legislature through statutory reform.12 As a result, courts may now request a party to provide a DNA sample.13 Refusal entitles the court to draw such adverse influence as seems appropriate as a result.14 The court must weigh up the interests of the child and ascertaining the truth before making an s70 request. Despite this being a difficult and delicate balance,15 Petrie v Petrie16 affirms the principle that refusing to make an s70 request would be ignoring a relevant piece of evidence. Only exceptional circumstances justify not pursuing this request.17

Two or more people can have parental rights and responsibilities (PR&R) over the same child. The legislature acknowledged the modern reality of reconstructed families,18 moving away from only granting PR&R where a genetic link exists. In this respect, Karen can have her wishes realised. Karen and Angus have automatic PR&R over Harry and James as their mother and presumed father.19 PR&R over Lily are held by Karen and
9

LR(P&C)(S)A 1986 s 6(2) LR(P&C)(S)A 1986 s6(1) 11 Principle created in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, legislated in s2(4) Age of Legal Capacity (Scotland) Act 1991 12 Edward and Griffiths, Family Law in Scotland, p.91 13 Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 s70 14 LR(MP)(S)A 1990 s70(2) 15 Edward and Griffiths, Family Law, p.91 16 1993 SCLR p.391 17 Thomson, Family Law, p.180 such as the child being the product of an incestuous relationship 18 Edwards and Griffiths, Family Law in Scotland, p.72 19 C(S)A1995 3(a) & 3(b)(ii)
10

Phil. Karen is Lilys mother by virtue of carrying and giving birth to her as a result of the embryo being placed in her.20 The 2008 Human Fertilisation and Embryology legislation affirms the recommendations of the Warnock Committee, extending deemed paternity to when unmarried couples are receiving fertility treatment together,21 affirmed in the decision of U v W22. Therefore Phil is to be treated as the father subject to the condition that he consented to being treated as the father23 and the procedure was carried out in the UK who has a license.24 The 2008 legislation removes the sperm donor from the picture entirely and he is not to be treated as the father of the child in any capacity.25 To acquire PR&R, Phil will need to be jointly registered as the father of Lily as26 PR&R are not acquired automatically.

Phil can make an application for PR&R over the boys27 as a person claiming interest. As a cohabitant with Karen, he has a substantial presence in the boys lives as well as being the father to Lily, their sibling. Courts tend to take a broad definition of who can take an
28

.interest (FvF) and it is not restricted to two people over the same child

Problem 2

20 21

HFAEA 2008 s 33(1) HFAEA 1990 S28(3) 22 1997 2 F.L.R p.282 23 HFAEA 2008 s37(1)(a) 24 HFAEA 2008 s36(b) 25 HFAEA 1990 s 6(a) 26 C(S)A 1995 s 3(1)(b) 27 C(S)A 1995 s11(b) 28 C(S)A 1995 s2(2)

The positions of Angus, Karen and Phil in relation to the various properties are complicated by their marital statuses and how different statutes regulate this. The impetus behind the 1981 Matrimonial Homes (Family Protection)(Scotland) Act was to grant the non-entitled spouse enforceable rights and protection in the property, despite having no title to the property.29 Karen and Angus are still married and Karens Edinburgh house was made available as the matrimonial home,30 which Angus has a continued, enforceable right to occupy31. Anguss right to occupy would only become unenforceable if the criteria of s1(7) MH(FP)(S)A 1981 were met, which has not occured. Karen would also not be able to enforce any ejection by way of an exclusion order as there is no behavior to warrant this32, although she could chose to enforce her own right to occupy the property.33

Karen and Phil are joint owners of their Perthshire estate and defined as cohabitants. Crake v Supplementary Benefits Commission34 highlighted certain admirable signposts of cohabitation enshrined in section 25(1) FL(S)A 2006. In deciding whether they qualify as cohabitants, courts will pay attention to the criteria of section 26(2) FL(S)A 2006, which would certainly be satisfied in this case. As the Perthshire estate is joint owned by Karen and Angus, they are both entitled to occupy.35

29 30

Edward and Griffiths, Family Law, p.391 MH(FP)(S)A 1981 s22 (1)(b) 31 MH(FP)(S)A 1981 s1(a) 32 MH(FP)(S)A 1981 s4(2) 33 MH(FP)(S)A 1981 s1(1) 34 [1982] 1 All ER 498 35 Thompson, Family Law in Scotland, p.202

Karen is a non-entitled partner in the Ayr property. To be granted occupancy rights, she must apply to the court for them.36 These rights could be granted for six months,37 with a possible extension. As a result, Phil cannot obtain a domestic interdict against Karen for the Ayr property unless she has been granted full occupancy rights38 following application. Therefore, Phil would have difficulty excluding Karen. His best course of action would be to seek a common law interdict and apply for power of arrest to be attached under section 2 Protection from Abuse Scotland Act 200139.

Phil can take steps to fully exclude Karen from the Perthshire estate40 as the 1981 legislation extends the rights of exclusion orders to cohabitants.41 Phil could chose to pursue a regulatory order,42 restricting her access to the property whilst drunk, however, these are not widely used. An exclusion order shall be granted on application where an order is necessary for the protection of the applicant or any child of the family from any conduct or threatened or reasonably apprehended conduct of the non-applicant spouse,43 provided granting it is not unjustified or unreasonable.44 Given the physical effects Karens behaviour is having on Phil and the emotional effect on the children, Phil has a strong case for the granting of a domestic interdict.

36 37

MH(FP)(S)A 1981 s18(1) MH(FP)(S)A 1981 s18(1)(b) 38 Clarke v Hatten 1987 SCLR 39 Thomson, Family Law in Scotland, p.204 40 MH(FP)(S)A 1981 s18(3)(b) 41 Thomson, Family Law in Scotland p.202 42 MH(FP)(S)A 1981 S3(1)(c) 43 MH(FP)(S)A 1981 s4(2) 44 MH(FP)(S)A 1981 s4(3)

Applying the reasoning of Brown v Brown,45 Karens conduct towards Phil would unlikely be affected if a domestic interdict prohibiting physical abuse were granted.46 However, the benefit of applying for a domestic interdict would be that power of arrest could now be attached for breach of the interdict.47 This would be granted provided the court was satisfied it was necessary to protect the applicant from the risk of abuse by breach of the interdict.48 Sleeping in a separate locked bedroom while Karen is drunk displays sufficient desperation to get away from her when inebriated49 which implies a state of diminished mental health.50 It is also reasonably foreseeable that the conduct will continue51 and the need to protect the children from the indirect effects of abuse further buttresses his argument.52

Given the severity of his injuries, Phil could consider an interim exclusion order.53 An application for exclusion should depend on four questions; the nature of the alleged conduct, the likely continuation of said conduct, whether the alleged conduct was physically or mentally injuries and whether the order sought would be necessary for the mental and physical wellbeing of the applicant or children.54 As discussed above, these criteria are satisfied and Phil would certainly be granted an s4 exclusion order. However, in turn, this would enhance Karens case for application for occupancy rights55 in relation to the Ayr penthouse, as she then has no residence available to her.
45 46

1985 SLT 376 MH(FP)(S)A 1981 s18A(2)(a)(i) 47 PFA(S)A 2001 s1 48 PFA(S)A 2001 s1(2)(b) 49 Brown v Brown 1985 SLT 376 50 MH(FP)(S)A 1981 s4(2) 51 Colagiacomo v Colagiacomo 1983 SLT 559 52 Claire Connelly Family Dynamics: Contemporary Issues in Family Law 2001p.189 53 MH(FP)(S)A 1981 s4(6) 54 McCafferty v McCafferty 1986 SLT 650 at 655 55 MH(FP)(S)A 1981 s18(1)(b)

Problem 3

Angus has automatic PR&R over both boys (as previously discussed) and therefore has a right to regulate his childrens residence under s2(1)(a) C(S)A 1995. As Angus wants both boys to live with him, he must make an application for a residence order56 regulating whom a child under sixteen is to live.

The courts regard the welfare of the child as the paramount concern57 and will not make an order unless it will be beneficial to the child, in accordance with the minimum intervention principle.58 The welfare principle is a vague concept defined as a process whereby all relevant facts, relationshipsrisks, choices and other circumstances are taken into account and weighed. 59 The court in carrying out its obligations shall have regard to the need to protect the child from any abuse60 or the external effects of abuse of a parent.61 Drunken behaviour and alcoholism is regarded by the courts as a negative indicator as to the capacity of a parent as carer for a child.62 This would certainly
56 57

C(S)A 1995 s11(2)(c)(i) C(S)A 1995 s11(7)(a) - the welfare principle 58 Edward and Griffiths, Family Law, p.137 59 J v C 1970 AC at 710 - 711 60 C(S)A 1995 s11(7)(B)(a)(i) 61 C(S)A 1995 s11(7)(C)(a) 62 Shearer v Shearer 2004 G.W.D p.38

outweigh any attention given to Anguss previous drug convictions and the decision of Early v Early63 suggests that undesirable behaviour but necessary positive changes in lifestyle can result in the granting of a residence order, although Karen would no doubt seek to rely on the convictions.

The court, as far as is practical shall give effect to both boys wishes regarding who they want to live64, preserving their rights under Art 12 UNCRC. Case law in this area suggests the court must hear the childrens.65 If the children express that they are finding Karens behaviour traumatic, this will help Anguss case. Despite maternal preference being a factor in residence rights in prior decades,66 to apply it now would subvert the proper test of the childs best interests.67 Courts are also reluctant to part siblings,68 however, the courts could enforce a contact order69 ensuring that Lily is enabled to visit and have the benefit of the mother and fathers attention as well as retaining family ties.

Courts are reluctant to disrupt the status quo in regards to removing children from a settled life. In Breingan v Jamieson, in finding against the childs legal parent in a residence dispute, Lord Maclean observes to remove her to a totally different environment would be disruptive of her happy settled life. In Blake v Blake, the court also found that returning to a familiar area was in the childrens best interest. The same decision was also given in a serious incident regarding breach of an Irish Custody order.70
63 64

1989 SLT 114 C(S)A 1995 s7(b) 65 Shields v Shields 2002 SLT 579. 66 Brixey v Lynas 1994 SLT 847 67 Mooney v Mooney 1987 G.W.D 3-80 68 H v H 2010 SLT 395 69 C(S)A 1995 s1 70 Sherwin v Trumayne 1992 G.W.D p.29

Factors such as education can be taken into account in deciding whether to upset the status quo71 as arguably the main aspects of their social and educational lives are in Perthshire. The fact Angus can provide a church community will hardly offset removing the boys from their life in Perthshire. In an increasingly secular society, religion is only in extreme circumstances considered a factor in custody battles.72. Karen may also choose to pursue a specific issue order73 as both parents are entitled to a say in any childs religious guidance.74

Because of this, if Phils exclusion order was successful and Karen was removed, the court would be severely reluctant to uproot both boys. In this regard, as Phil would most likely be granted an exclusion order and PR&R over Harry and James, as applied for, the court would likely regard it in keeping with the minimum intervention principle to remain in Perthshire and not disturb the statuts quo.75 The courts would be slow to upset the status quo, even if it means granting residence to a primary carer who is not the biological parent of the child.76 Phil, if granted PR&R, could also choose to appeal the decision if Angus were granted residence.

Problem 4

71 72

G v G 2002 FLR 120 Latey J in Re B and G (Minors) [1985] FLR, scientology referred to as immoral and socially obnoxious 73 C(S)A 1995 s11(2)(e) 74 C(S)A 1995 s1(2)(b) 75 Hannah v Hannah 1971 SLT 42 76 Breingan v Jamieson 1993 SLT 186

The key objective in any financial provisions granted in divorce proceedings under the 1985 legislation is a clean break77 for both parties to be able to move on independently. The grounds for divorce would remain the same for Karen and Angus, the irretrievable breakdown of the marriage.78 This will be granted if the conditions of section 1(2) of the Divorce (Scotland) Act 1976 are met; adultery on the part of the defender etc. All these factors can be easily proven. After these are established, the matrimonial property will be distributed between Phil and Karen. The main concerns in this area are what qualifies as matrimonial property79 the various stages of Anguss employment, Karens assets and her present and foreseeable resources.80 However, consideration must be given to the quality of life Angus enjoyed as a result of Karens contributions. 81

The central provision of the FL(S)A 1985 is that the net value of the matrimonial property at the relevant date is to be shared fairly between the parties, taking account of any economic imbalance suffered by either party in the marriage82 and making financial provisions for the care of the children.83 The relevant date will be when Karen moved out of the matrimonial home.84

In the division of property, Angus can make an application for a property transfer of the Edinburgh townhouse as part of his share of the net matrimonial property.85 Whether the
77 78

Thompson, Family Law, p.449 Divorce (Scotland) Act 1976 s1(1)(a) 79 FL(S)A 1985 s9(1)(a) 80 FL(S)A 1985 s27(1) see Gribb v Gribb 1995 SCLR 1007 81 Louden v Louden 1994 SLT 381, where economic disadvantages were not offset by the quality of life enjoyed during the marriage. 82 FL(S)A s9(1)(b) 83 FL(S)A s9(1)(c) 84 FL(S)A s10(7) 85 FL(S)A 1985 s8(aa)

Edinburgh townhouse qualifies as matrimonial property is uncertain. As Karen purchased the property with inherited money, if she could establish the intention of the donor was that she purchase herself a house, the house will be excluded from matrimonial property under s10(4) 1985 and categorized as a gift.86 This preserves the intentions of the donor, despite the fact the gift is money rather than the property.87 If this requirement is not met, the value of the house will be incorporated into the net value of matrimonial property, to be shared fairly.88 Also, as Angus has improved the Edinburgh property at his own expense, the value of the property will be taken at the date of dissolution89 rather than the relevant date to avoid any party receiving an unfair windfall.90

Various aspects of the situation improve Anguss chances of a property transfer in this respect. Under s8(2)91, the transfer order must be justified by the principles of s9 and reasonable, having regards to the resources of both parties. Karen has ample resources in terms of property and the value of her business compared to Angus. Given that Angus is pursuing custody of the boys, the house is of greater importance to the childrens welfare.92 Karen has ample present and future resources,93 in assets and property, which would justify an unequal division of the matrimonial home in Anguss favour. Courts are reluctant to make property transfers unless there is enough matrimonial property that the property the transferee gains can be justified as a fair share,94 however, that will not likely
86 87

Latter v Latter 1990 SLT 805 Edward and Griffiths, Family Law in Scotland, p456. 88 Mitchell v Mitchell in Edward and Griffiths, Family Law in Scotland at p.456 89 the appropriate valuation date which, in the absence of agreement by the parties, is when the property transfer is made, usually the date of dissolution. 90 Thomson, Family law, p.171 91 FL(S)A 1985 92 Murphy v Murphy 1996 SLT 93 Gribb v Gribb 1995 SCLR 1007 94 Lewis v Lewis 1993 SCLR 33

be a problem here. Angus also sacrificed a lucrative job to support Karens burgeoning design business, which he must be compensated for. Section 9(1)(b) FL(S)A 1985 and case law bodes well for Angus in this regard as case law shows courts are more likely to correct any economic imbalance by way of giving one party more matrimonial property than the other rather than making a capital transfer, even where the court cannot identify firm examples of economic gain as the result of one partys sacrifice.95

Angus may also seek an order for a periodic allowance for the care of the children.96 These orders are inconsistent with the concept of a clean break, although the principle underpinning the legislation is that the economic burden of childcare for children under 16 is to be shared.97 The court will not grant a periodic allowance where a capital sum transfer will suffice.98 The benefit of a periodic allowance is that they are subject to review, meaning if Angus were to find more lucrative employment, the orders could be reduced. As Phil has given up work to look after the children and they no longer cohabit, Phil has grounds under s28(2)(b) FL(S)A 2006 to seek an order requiring Karen to pay an amount specified in respect of any economic burden of child care . If both actions happen at the same time, the orders in regards to Phil and Angus would be heavily dependent on the outcomes. If Angus were to receive residence rights over the two boys, he would be entitled to proportionally more in the way of periodic allowance whereas Phil in looking after Lily would receive proportionally less. As Karens business is very successful and both have helped her in this, they both have good reason to seek remedies for their contributions.
95 96

Coyle v Coyle FLR 2004 p2 FL(S)A 1985 s8(1)(b) subject to s9(c)(i) FL(S)A 1985 97 FL(S)A 1985 s9(1)(c)(i) 98 FL(s)A 1985 s13(2)(b)

Bibliography Books Jane Mair, Avizandum Statutes on Scots Family Law 2009 2010, 2009 7th edition Joe Thomson, Family Law in Scotland, 2006 5th edition Lillian Edwards and John Griffiths, Family Law, 2006 Jane Scoular, Family Dynamics: Contemporary Issues in Family Law, 2001 Legislation Divorce (Scotland) Act 1976 Matrimonial Homes (Family Protection) (Scotland) Act 1981 Family Law (Scotland )Act 1986 Law Reform (Parent and Child)(Scotland) Act 1986 Human Fertilisation and Embryology Act 1990 Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 Age of Legal Capacity (Scotland) Act 1991 Children (Scotland) Act 1995 Protection from Abuse (Scotland) Act 2001 Family Law (Scotland) Act 2006 Human Fertilisation and Embryology Act 2008 United Nations Convention on the Rights of the Child

Cases Breingan v Jamieson 1993 SLT 186 Brixey v Lynas 1994 SLT 847 Brown v Brown 1985 SLT 376 Clarke v Hatten 1987 SCLR Coyle v Coyle FLR 2004 p2 Colagiacomo v Colagiacomo 1983 SLT 559 Crake v Supplementary Benefits Commission [1982] 1 All ER 498 Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402
G v G 2002 FLR 120

Gribb v Gribb 1995 SCLR 1007 Hannah v Hannah 1971 SLT 42 H v H 2010 SLT 395 J v C 1970 AC at 710 711 Latey J in Re B and G (Minors) [1985] FLR Lewis v Lewis 1993 SCLR 33 Louden v Louden 1994 SLT 381 McCafferty v McCafferty 1986 SLT 650 Mooney v Mooney 1987 G.W.D 3-80 Murphy v Murphy 1996 SLT Shearer v Shearer 2004 G.W.D p.38 Sherwin v Trumayne 1992 G.W.D p.29 Shields v Shields 2002 SLT 579. Torrie v Turner 1990 SLT 718 Whitehall v Whitehall 1958SC 252