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 James’s father as both boys were born while Karen and Angus were

married,3 despite the fact that Karen hasn’t 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

Angus’s. 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 ‘Mater simper certa est etiamsi vulgo conceperit.’ Justinian’s Digest (D.II, 4,5).2 Law Reform (Parent and Child)(Scotland) Act 1986 s 53 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 76 C(S)A 1995 s8(1).7 Edward and Griffiths. Family Law, p.838 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)10LR(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 199112 Edward and Griffiths, Family Law in Scotland, p.9113 Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 s7014 LR(MP)(S)A 1990 s70(2)15 Edward and Griffiths, Family Law, p.9116 1993 SCLR p.39117 Thomson, Family Law, p.180 – such as the child being the product of an incestuous relationship18 Edwards and Griffiths, Family Law in Scotland, p.7219 C(S)A1995 3(a) & 3(b)(ii)

Phil. Karen is Lily’s 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 boy’s lives as well as being

the father to Lily, their sibling. Courts tend to take a broad definition of who can take an

interest (FvF) and it is not restricted to two people over the same child.28

Problem 2

20 HFAEA 2008 s 33(1)21 HFAEA 1990 S28(3)22 1997 2 F.L.R p.28223 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 Karen’s Edinburgh house

was made available as the matrimonial home,30 which Angus has a continued,

enforceable right to occupy31. Angus’s 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 Edward and Griffiths, Family Law, p.39130 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 49835 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

Karen’s 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 MH(FP)(S)A 1981 s18(1)37 MH(FP)(S)A 1981 s18(1)(b)38 Clarke v Hatten 1987 SCLR39 Thomson, Family Law in Scotland, p.20440 MH(FP)(S)A 1981 s18(3)(b)41 Thomson, Family Law in Scotland p.20242 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 Karen’s 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 Karen’s case for application for occupancy rights55 in relation

to the Ayr penthouse, as she then has no residence available to her.

45 1985 SLT 37646 MH(FP)(S)A 1981 s18A(2)(a)(i)47 PFA(S)A 2001 s148 PFA(S)A 2001 s1(2)(b)49 Brown v Brown 1985 SLT 37650 MH(FP)(S)A 1981 s4(2)51 Colagiacomo v Colagiacomo 1983 SLT 55952 Claire Connelly ‘Family Dynamics: Contemporary Issues in Family Law’ 2001p.18953 MH(FP)(S)A 1981 s4(6)54 McCafferty v McCafferty 1986 SLT 650 at 65555 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 children’s 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, relationships…risks, choices and other circumstances are

taken into account and weighed.’ 59 The court in carrying out it’s 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 C(S)A 1995 s11(2)(c)(i)57 C(S)A 1995 s11(7)(a) - the ‘welfare principle’ 58 Edward and Griffiths, Family Law, p.13759 J v C 1970 AC at 710 - 71160 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 Angus’s 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 children’s.65 If the children express that they are finding

Karen’s behaviour traumatic, this will help Angus’s 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 child’s 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 father’s 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 child’s 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 children’s best interest. The same

decision was also given in a serious incident regarding breach of an Irish Custody order.70

63 1989 SLT 11464 C(S)A 1995 s7(b)65 Shields v Shields 2002 SLT 579.66 Brixey v Lynas 1994 SLT 84767Mooney v Mooney 1987 G.W.D 3-8068 H v H 2010 SLT 39569 C(S)A 1995 s170 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 child’s religious

guidance.74

Because of this, if Phil’s 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 G v G 2002 FLR 12072 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 4276 Breingan v Jamieson 1993 SLT 186

The key objective in any financial provisions granted in divorce proceedings under the

1985 legislation is a ‘clean break’77 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 Angus’s employment, Karen’s assets and her

‘present and foreseeable resources.’80 However, consideration must be given to the

quality of life Angus enjoyed as a result of Karen’s 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 Thompson, Family Law, p.44978 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 100781 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 Angus’s 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 children’s

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 Angus’s 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 Latter v Latter 1990 SLT 80587 Edward and Griffiths, Family Law in Scotland, p456.88 Mitchell v Mitchell in Edward and Griffiths, Family Law in Scotland at p.45689 ‘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.17191 FL(S)A 198592 Murphy v Murphy 1996 SLT93 Gribb v Gribb 1995 SCLR 100794 Lewis v Lewis 1993 SCLR 33

be a problem here. Angus also sacrificed a lucrative job to support Karen’s 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 party’s 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 Karen’s business is very

successful and both have helped her in this, they both have good reason to seek remedies

for their contributions.95 Coyle v Coyle FLR 2004 p296 FL(S)A 1985 s8(1)(b) subject to s9(c)(i) FL(S)A 198597 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 186Brixey v Lynas 1994 SLT 847Brown v Brown 1985 SLT 376Clarke v Hatten 1987 SCLRCoyle v Coyle FLR 2004 p2Colagiacomo v Colagiacomo 1983 SLT 559Crake v Supplementary Benefits Commission [1982] 1 All ER 498Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402G v G 2002 FLR 120Gribb v Gribb 1995 SCLR 1007Hannah v Hannah 1971 SLT 42H v H 2010 SLT 395J v C 1970 AC at 710 – 711Latey J in Re B and G (Minors) [1985] FLRLewis v Lewis 1993 SCLR 33Louden v Louden 1994 SLT 381McCafferty v McCafferty 1986 SLT 650Mooney v Mooney 1987 G.W.D 3-80Murphy v Murphy 1996 SLTShearer v Shearer 2004 G.W.D p.38Sherwin v Trumayne 1992 G.W.D p.29Shields v Shields 2002 SLT 579.Torrie v Turner 1990 SLT 718Whitehall v Whitehall 1958SC 252