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Family Law Revision Notes
Parental rights and Responsibilities
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Rights and obligations parents have towards their child
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A mother always had PRR, and if she is married, the father also has parental rights
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The rights relate to a whole range of topics such as guardianship, accommodation
etc
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Anyone with an interest in the child can raise an action in court asking for PRR
Adoptive parents get PRR when they have adopted the child
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There is still always the responsibility to guide the child until they are 18 years old
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Parents must fulfill their parental rights in the interests of the child as far as possible
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Each can exercise these without
the other's consent
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Children can sue their parents if they don't fulfill their rights
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Courts only interfere if a matter is brought to their
attention
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Section 1Parental responsibilities(a) to safeguard and promote the child’s health, development and welfare;
(b) to provide in a manner appropriate to the stage of development of the child(1)
direction;(11) guidance, to the child
(c) to maintain personal relations and direct contact with the child on a regular basis
(d) to act as child’s legal representative
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If the child needs urgent medical care whilst in their care, they can consent to medical care
if they have no reason to believe that the parents would refuse that care
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- Making decisions on child's behalf (any legal
transaction) Parents usually jointly look after the child's affairs
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S9 Key sections 9 and 10
S9 safeguarding of child’s property
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Legal representative must act in the Child's
best interests
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S10 Administration of the child’s property
When the child reaches 16, the child can sue
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Guardians;
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S7 and s8 of the Children (Scotland) Act 1995
S7(1) a parent can appoint a guardian
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- usually written into will
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- no obligation to be
appointed as guardian
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S7(5) A guardian has PRR like a parent
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Comes to end if child or guardian dies, or children reaches age of 18
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A child over the age of 12 must consent as to who their guardian will be
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S8 deals with revocation
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Residence order s11 (2) (c) - dictates where and with whom the child lives
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Contact order s11 (2) (d) - parent who doesn't have residence can raise this to get contact
with the child
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3
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Court will decide for them in the best interests of the child
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Dispute between family members
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Interdict s11(2)(f)- action to prevent someone from doing something
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Order to deprive parent of PRR s11(2)(a)- take away the parental rights of the parents
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6
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Usually
stepparents
7
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,
8
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Can apply for an interim order (short term) , vary existing court order or discharge it
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Someone who claims an interest s11(3) (a)(1)
2
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Anyone who had PRR but lost them s11(3)(ab)

Ancillary action
S12 If an action relating to divorce, separation or nullity of marriage/ civil partnership has
been raised the court can make an award under s11
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A child is someone under age of 16; a child of them both or any other child (not a foster
child)
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S11(7)(a) The court “Shall regard the welfare of the child concerned as its
paramount consideration and shall not make any such order unless it considers that
it would be better for the child that the order be made than that none should be
made at all
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There is a duty to consult the child and consider their views
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Need to protect children from abuse
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(minimalist principle
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There is a duty to consult the child and consider their views (over 12)
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s7B Need to protect child from abuse or risk of any abuse which affects or might affect the
child
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S7C Abuse includes violence harassment etc abuse of a person other than a child and
domestic abuse
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Can be abuse to any other
person, not just to the child directly, but indirectly to another person
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Mother had 3
children, pursuer was father of one child only (middle child)
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The police were
called to the house occasionally
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9, 13 and 15
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Pursued
contact for youngest who was a girl
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Court considered her
opinion and she said she was scared of the pursuer and she had mixed feelings towards him
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Court allowed limited letterbox
contact only
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Residence order
Parents have the right to decide where their child lives, but it must be used in accordance
with the best interests of the child
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English case accepted in Scots law
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When he is 4 days old he is taken into care and then he gets back to his parents and
they go and live in Spain
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Health suffers in Spain
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Foster family bring him up as a
catholic with family tradition
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Birth parents asked for son back
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Birth parents had good home, health and were both employed
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Medical evidence was led that it
would be disastrous to take him back to Spain
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Rights and wishes of natural parents did not come first
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What do the Courts look at?
1
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Breingan v Jamieson 1993 SLT 186- a girl whose parents were divorced
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Mother
dies
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This happened
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He had remarried
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Black v Black 1990 SLT (Sh CT) 42- two boys (8 and 5) mother takes them from Scotland to
live with her dad in England
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He was in employment and got housekeeper to look after them
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They were left with their dad
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GM was very
negative about child's mother
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Ellis v Ellis 2003 FLR 77- Parties divorcing, 2 children (8 and 5)
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Fight between mother and father
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Status quo was upheld and
they were left with mother
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Mother had improved her health
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2
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Abuse, flies into rages, inappropriate behaviour, leaves
children alone in house
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Mother was drunk
and had active social life
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Father had criminal
record and was involved with drugs
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Court gave residence to the father as the quality of care the
mother could give was not high enough
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Parties separated when she was three
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Mother had moral issues
regarding her lifestyle
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Came down to a
question of risk- the father put the girl at the top of his list of priorities
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Mother was facing prosecution on solemn procedure for drug use- in front of high court
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3
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Child was very young (14 months)
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Residence was given to the mother because the child was
so young- money is not the only consideration- emotional wealth taken into account
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Casey v Casey 1989 SCLR 761- Mother in surrey, well off, dad in Scotland on benefits
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Significant because she should offer children more advantages
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Parents with three bedrooms got
residence over parent with 2 bedrooms
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Sexuality- this is more outdated now, but might still be considered in some cases
Early v Early 1989 SLT 114- married couple with three children
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Dad raised action for residence of his son, because
his wife had started living with another woman
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Three children could stay together
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T,Pet1997 SLT 724- adoption case
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Disabled little
boy placed with single man as foster parent
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Foster dad had male
partner
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Birth mother was not
interested and walked away
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It was said that his sexuality is only one factor that the court
will look at
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Religion – the courts prefer the child to have some religious teaching than none at all
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Father was an atheist and not prepared to give child religious teaching
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Mother got residence of
the boy
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She
was living with her dad
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Girl was left with father
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Mother was devout and got increasingly so
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Father wanted shared residence
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4 nights with each
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6
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7
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Osborne v Matthan 1998 SC682- mother was from Jamaica
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Child looked after by English neighbour because mother was sent to jail for three
years
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Birth mother was about be
deported but was allowed to stay and defend the court action
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However residence was given to neighbour on the condition
that she let the mother have contact, tell the girl about her background and preserve her
cultural identity
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Other points
Siblings usually go together but can be split up, as seen in the case of PH v JK 2010 CSOH 32
Mother stayed in Glasgow, dad goes to Australia
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Foreign Decree - Scottish courts not bound by foreign decree
Sinclair v Sinclair 1988 SLT 87- divorce action in Germany
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Mother gets residence of two children in German court
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Held that the welfare of children is
most important thing
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Mother's motion for residence was refused by Court of Session
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Parents lived close together in same
village
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4
went to mum, 2 went to dad
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Court allowed
this, then dad appealed on grounds that child's opinion had been overlooked
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Dosoo v Dosoo 1999 SLT 86- divorce action, 2 sons (14 and 12)
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Both parents wanted
residence
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At earlier stage he had been

refused contact
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Said failure to do so
was a breach of his human rights under article 6 and 8
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Human Rights Challenges-All court proceedings must be compliant with European
Convention of Human Rights
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Non-parents seeking residence
Wright v Wright 1999- child lived with grandmother (2 1/2) Mother wanted her back
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) Little girl was settled
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W v B 2000 GWD 30-1166 child was 3 and mother died (heroin addict) Father living with
someone else
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Uncle had 4 children and boy was there a year when dad asked for residence
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Uncle got residence of the boy
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The act imposes a duty of the parent to keep contact with the
child
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There is an assumption that contact is in the child's best interests unless there is evidence to
prove otherwise
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It only comes to the
attention of the court if there is a problem or a dispute
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Porchetta v Porchetta 1986 SLT 105- parents divorced, woman had residence of 18 month
old son
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He had only seen his child twice for very brief moments
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The father had never been in steady
employment since he got married
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Held there was not a shred of evidence to suggest it was in the child's best interests
to see his father
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Mother had remarried and there was a stepdad
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As child got older she
became more unwilling to go with her dad, and the mother was opposed to contact
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She was settled with the stepdad
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He forced himself into their
nursery school and shouted at the staff
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Mr White was
good father whilst they were married
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Younger daughter would not go with her dad
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Mother appealed successfully
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Inner
house said that when any court was interpreting the 1995 act, it was assumed to be in the
child's best interests if absent parents maintained personal relations with them on a regular
basis
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Unmarried father contact orderSanderson v McManus 1997 SC(hl) 55- Supreme Court- lived together and had a little boy
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He had been violent to the mother
during their relationship
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He said his dad had hit him because he refused to call him daddy
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SC said the
natural bond between a father and child is very important, but in some cases contact has
nothing to offer
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Held that contact was not in
the child's best interests and contact denied
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When he raised action for contact it was refused following Sanderson v McManus
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X v Y 2002 Fam LR 58- Unmarried dad who was a homosexual father
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Initially he had a very good relationship with the
mother and he went to the scan and bought the baby gifts etc
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Dad had no contact so raised an action for
contact and parental rights
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The dad was successful at getting both contact and
parental rights
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JM v PK 2015 CSIH 54-dad never behaved well but contact
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They separated, and he did not have a good relationship with the little girl’s
mother
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On
four occasions he phoned social work departments and makes false claims about the girl's
mum
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Inner house held he was a good dad, and
when he did look after her he did it well, and the daughter needed a father figure, and was
unharmed by complaints to social work
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Contact - Test is what is in child’s best interests
Welfare principle - abuse provisions
MS v LJ 2012 CSOH 49- One child
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He had been
emotionally and physically abusive to his previous wife
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On one occasion he lashed
out and it her son by mistake
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It was supervised contact
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Dad had been given parental rights and contact
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Sheriff followed White v White and held that as there was not evidence of
abuse, the contact was increased
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Mother refused rights
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Sheriff Morrison gave a checklist of what
was considered by the courts
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The test is what is in the best interests of the child:
1) degree of commitment by the applicant to the child
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3) The importance of commitment and attachment to the child's welfare
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5) Whether the applicant would take account of the child's views
6) Is there a need to portect th child from the conduct of someone?
7) Can the applicant and the other parent with PR cooperate?
8) Court has to consider need to protect the child from the conduct of someone
9) The minimalist principle- is it better that an order be made or none?

AH v JM 2010 WL 1608448- dad did get PRR
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parties separated
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Mother opposed to this
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Held that the Dad's
commitment to son was huge- he had moved his home and job to Inverness so he could be
closer to son
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Child was too young to have opinion but
by inference he wanted his dad
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ML v IM November,2011- Religious aspect
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dad was
Jehovah's witness and mother was a catholic
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PR refused because it could create an issue with
health situations if he did not consent to blood transfusion if the situation arose
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Child of 14 wanted to see her half-brother and
sister who were 4 and 12
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Sheriff thought it would be possible to allow
her supervised contact
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Held he was too young, not granted
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Mother wanted to take 11 year old son to spain with
her new partner
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He would not consent
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Sheriff laid down criteria
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3) The importance of contact with absent parent
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5) the extent to which contact is to be maintained
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7) Child's views
8) effect of move on child
9) The effect of a refusal on the child's welfare
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ReligionParents can choose a child’s religion and courts will only intervene if there is conflict
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Children can choose their
own religion when they are over the age of 16
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Mother was a
nominal Christian
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Child aged 6, and twins aged 4
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Parents had
married in Egypt and marriage certificate contained statement that the children would be
brought up as Muslims
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Mother took them to Church
of Scotland Sunday school
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Sheriff said children should have opportunity to experience both religions
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It is the child's welfare which is the courts
main consideration
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Article 14 of the UN Convention of the child states the state has to “respect the
right of the child to freedom of thought, conscience and religion” and protects the
“rights and duties of the parents—to provide direction to the child in the exercise of
his or her rights in a manner consistent with the evolving capacities of the child”
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Forced boy to attend three prayer meetings a week against his will
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Discipline

Parents can use reasonable force to restrain their children
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Criminal Justice (Scot) Act 2003 S51(1)- to see if assault has taken place whilst disciplining
children
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You can't shake them, and you can't hit a child
using an implement
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Parents can consent if child too young to consent
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Names
Parental responsibility to choose a child’s name
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 All parents have duty to maintain their child
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)
 S1(2) The obligation to aliment is to provide such support as is reasonable in
the circumstances having regard to s4
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 Child looked after by local authority-still need to aliment
 Adoption-only adoptive parents need to aliment
 Fostering- as agreed in the fostering agreement
 Most common situation is where the child is living with one parent-Can raise court
action
 S3(1)(a) make an award of periodical allowance for definite or indefinite period
 S3(1)(b) can make an award for occasional or special events

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Aliment can be backdated
Court decree can be varied under section 5 if there is a material change of
circumstances
Interim order possible s6

New Method- Child Support Act 1991 as amended
IMPORTANT ACT IN FINANCIAL PROVISION FOR CHILDREN
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Effective since 5th April 1993
Effectively has ousted the jurisdiction of the court
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Rigid formula initially
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S1(2)non resident parent has the duty to maintain and pay maintenance for the
child
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S3 defines qualifying child; non-resident parent and parent with care
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Child support maintenance is found in section 4- either parent can apply for a
calculation under this section
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Special rules apply for low income families
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Unemployed people do not pay aliment
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s39A s40 imprisonment or lose driving licence
s41A penalty points

When will 1985 act apply?
Top up if parent very wealthy s8(6)(b) 1991 act
Aliment for disabled child s8(8) and (9)1991 act
Children accepted into family s1(1)(d) 1985 act
If child raises action v
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This is enforced by the maintenance and
enforcement commission, and there may be penalty’s for failing to do so
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Age;
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S1(1)- must be over the age of 16 to marry legally
S1(2)- Any marriage in Scotland where either person is under 16 will be void
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Forbidden degrees of relationship;
Forbidden degrees are as stated in s2(1) and schedule 1 of the 1977 act
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Three types of forbidden degree:
Consanguinity-related by blood
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Corbett v Corbett 1971 P 83- English case- petitioner Mr Corbett was married and had four
children
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She had been born a
man, and changed into a woman by a sex change operation
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She changed her name by deed poll and got a NI card
in a female name
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He divorced his wife and him and April
Ashley got "married" in Gibraltar
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She claimed
maintenance from her husband
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The court looked at medical evidence
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Five medical tests were carried
out, and all showed she was male
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Cossey v UK (1991) 13 EHRR 622- European Court- Applicant had been born a man (Barry
kenneth) At 18 he changed his name to Caroline by deed poll and underwent operation in

20's, got a female passport and worked as a fashion model
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She wanted to marry an Italian national
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There is no
breach, as it was medically impossible to completely change the sex of someone at the time
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Goodwin v UK(2002)35 EHRR 447- sex change from male to female
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g
not allowed to claim employment tribunal and claim pension at age of 60
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- ECHR ATTITUDE COMPLETELY CHANGED
Bellinger v Bellinger 2003 2WLR 1174 - Supreme court
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She married Mr Bellinger
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Court refused because of the law
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House of
lords claimed the marriage was not valid
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Thirdly she successfully got a declaration
that English law was incompatible with her human rights
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Gender Recognition Act 2004-Allows transsexuals to have recognition of their new gender
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Prior existing marriage;
A person must be free to marry and under S5(4)(b) any previous marriage must be dissolved
by death or divorce
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He told her he was
divorced and they got married
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6 months later she discovered
that he was not divorced and was still married to first wife
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She got annulment and £2500
because he knew that he was not free to marry at the time of the ceremony
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If the widow has remarried, then it still stands, and the original
marriage is declared void
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The onus is on the person
seeking to deny the marriage to prove that the other party did not understand
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Error is
limited to the identity of the other party or the nature of the ceremony
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Forced Marriage etc (Protection and Jurisdiction)(Scot) Act 2011
S1 court can make a forced marriage protection order
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S1(3) must consider persons feelings and wishes
S1(4) marriage is forced if without their free and full consent
Force is coercion by physical, verbal or psychological means, threatening conduct,
harassment or other means
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Another person can do so with leave of the court
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VOID
1
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either or both under 16
3
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4
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5
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6
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-error or fraud
7
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S17(1) 1985 act- Court can award financial provision if marriage void or voidable
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(Voidable)
Can be personally barred from obtaining decree if certain conditions are met
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If knew of impotency
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If there is delay and serious prejudice to the other party
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If the party co-operates in artificial insemination or adoption of a child
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if raise a divorce action

Irregular Marriage
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Only remaining type is Marriage by cohabitation with habit and repute- it was
abolished in 2006 but is still applicable to those cohabiting prior to that date
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Can also be rebutted if there is an impediment and the parties don’t know it was
removed, or their conduct revels that they do not consider themselves to be
married
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Cohabitation must be in Scotland
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People have to regard them as husband and wife
They must both have legal capacity to marry
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If spouse then dies
can raise action in Scotland that you are married under this doctrine
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Domicile
S1 Domicile and Matrimonial Proceedings Act 1973
2
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Immigration
4
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Delict
6
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Ends when marriage ends
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a husband to his wife
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a wife to her husband
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father or mother to child
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a person to any child accepted as child of the family
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partners in a civil partnership
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S3(1) The court can
1
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2
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backdate awards
4
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S4(3)(a) can consider if the person is living with someone else
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Can collect aliment by a current maintenance arrestment
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Duty to aliment ends with divorce or death
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g
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Can raise a court action to regulate matters – judicial separation
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They lived together between 1979 and 1987 when Mr
Donnelly died
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Neighbours and acquaintances
thought they were married
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Woman had used her previous married name on
her daughter's birth certificate and when claiming state benefits
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Court held that the weight of the evidence established that they were
married
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Decree of marriage from
the 1st January 1980
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He got divorced in 1979
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She tried to get a widow's pension after his death
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They did discuss getting married, and they wore rings
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Her family knew they were not married
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COS held they were not married
because no one believed they were
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S v S 2006 SLT 471-Pursuer is woman and she raises action of declarator- living together in
1990 but she was married to someone else
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Three children together (new
partner)
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She was already into a new relationship
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Evidence that friends and family thought they were married
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Children's school and medical records in married names
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Walker v Roberts 1998 SLT 1133
Man raises action that he was married to Elizabeth Roberts so he could divorce her and then
claim financial provision on divorce
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When they started living
together, they were both married to other people with their own children
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Never discussed marriage
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Later on they bought a farmhouse in the woman's own name
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They had cohabited in Africa for the time
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Property was in their own names, separate bank
accounts
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More
than half the witnesses thought they only lived together
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Rape does not constitute adultery
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Anything less than adultery can be considered as
unreasonable behaviour
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Husband raises divorce action against wife on
grounds of her adultery
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She said she had the daughter via artificial
insemination by a donor
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Unreasonable behaviour
Described in the act as “since the date of the marriage the defender has at any time
behaved (whether or not as a result of mental abnormality and whether such
behaviour has been active or passive) in such a way that the pursuer cannot
reasonably be expected to cohabit with the defender
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The behaviour can be active or passive- can apply if the person does
nothing at all
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Violence, abuse, nagging, humiliation, certain
kinds of sexual behaviour, obsessive behaviour, indifference, habitual drunkenness or drug
abuse, or criminal conduct
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Woman's health suffered
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Man deliberately did not work,
so divorce was granted
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She couldn't even feed herself, and at times she became aggressive and caused damage to
the house
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Husband raised divorce action- was granted
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Behaviour can be changed;
Dunlop v Dunlop 1950 SC 227- Mr Dunlop drunk excessively for 10years of marriage
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She left him, and he became a
changed character
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She tried to divorce him
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Sexual behaviour;
Stewart v Stewart 1987 SLT (Sh Ct) 48- Mr Stewart worked in a nightclub and came home at
2-3am most nights
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Woman didn't have
enough evidence to prove adultery so raised action of unreasonable behaviour and was
granted divorce
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Physical behaviour;
Walker v Walker 1953 SC 297- Husband divorcing wife on her violent behaviour
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Also hurt mother in law
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Neglect;
Campbell v Campbell 1973 SLT (notes) 82 Mr Campbell was drunk for almost 30 years every
friday-sunday night
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Mrs
Campbell's health was effected
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Harkins v Harkins 1966 SLT (notes) 31 -Mrs harkins divorcing husband0 frequently out of
work and under influence of drink
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Physically assaulted twice by him
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Entitled to
divorce decree
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If a spouse has committed criminal offence,
evidence of conviction can be used to prove UB
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”
Must give consent however consent can be withdrawn
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Can use simplified procedure if there are no children and no financial awards are
sought
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6 month reconciliation period allowed s2(4)
Can use simplified procedure if there are no children and no financial awards are sought
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Interim gender recognition certificate issued
Obtaining the above is grounds for divorce
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Defences
Adultery1
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S1(3) of the 1976 act
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- if the husband forces wife to be a prostitute, or
couple engage in husband and wife swapping parties
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Must take encouragement seriously and it
must have caused the adultery
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Three months later the wife went into a relationship with someone
else
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He was unsuccessful because of the letter
he had sent her
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His encouragement caused her to go off
with another man
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Thomson v Thomson 1908 Sc 179-Wife asked husband for some money
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He said certainly, go
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Had her followed by
detectives to Gateshead where she was committing adultery
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She
raised defence of lenocinium
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2
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If the innocent party knows about
adultery, then they can be said to have accepted or condoned it
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S1(3) of the 1976 act
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3 month cohabitation period allowed
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Postponement of divorce decree
A decree of divorce can be postponed under S3A of the 1976 act
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Standard of proof
On the balance of probabilities, with burden of proof on pursuer
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Burden of proof is on the
party raising then action
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Simplified divorce
Only available if
1
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2
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3
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4
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5
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6
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Financial provision on divorce
Governed by the Family Law (Scotland) Act 1985
This act sets up the guiding principles to be applied in divorce actions
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g
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Orders can also be made regarding pensions
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The court can only make an order if it is justified by one
of the principles in s9 of the 1985 act and it is reasonable having regards to the
resources of the parties
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S8 orders;
S8(1)(a) capital sum-lump sum payment
S8(1)(aa) Transfer of property
S8(1)(b) periodical allowance- aliment
S8(1)(ba) pension lump sum order
S8(1)(baa)pension sharing order
S8(1)(c) incidental order
S8(2)
Every order must be justified by s9 principles and reasonable with regard to the resources of
the parties
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Resources includes present and forseeable resources s27(1)
Resources are both income and capital
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9
...

(1) The principles which the court shall apply in deciding what order for financial provision, if
any, to make are that—
(a) the net value of the matrimonial property should be shared fairly between the parties to
the marriage [ or as the case may be the net value of the partnership property should be so
shared between the partners in the civil partnership] 1 ;
(b) fair account should be taken of any economic advantage derived by either [person] 2 from
contributions by the other, and of any economic disadvantage suffered by either [person] 2 in
the interests of the other [person] 2 or of the family;
[
(c) any economic burden of caring, should be shared fairly between the persons–
(i) after divorce, for a child of the marriage under the age of 16 years;
(ii) after dissolution of the civil partnership, for a child under that age who has been accepted
by both partners as a child of the family [ or in respect of whom they are, by virtue
of sections 33 and 42 of the Human Fertilisation and Embryology Act 2008, the parents] 4
...

]5
(e) a [person] 6 who at the time of the divorce [ or of the dissolution of the civil
partnership,] 7 seems likely to suffer serious financial hardship as a result of the divorce [ or
dissolution] 7 should be awarded such financial provision as is reasonable to relieve him of
hardship over a reasonable period
...
Wife was going to be entitled to a
capital sum of £53,000 but because the valuation of the business had fallen, she only got
£17,500
...

S8(1)(a) Capital sum
Either party can ask for payment of a capital sum
...

Must be justified by 1 of s9 principles and reasonable having regard to the parties
resources
...
The danger here is that if one party dies then you may end up with
no order at all
...
Some courts will set a specified
date that the capital sum has to be paid by
...

Security can be granted- ask the court to grant this to make sure the other party pays out
...

S8(1)(aa) Transfer of property order
Can make an order for the transfer of property from one spouse to the other
...

The court must consider the rights of 3rd parties and lenders
...
S15(2) need consent of creditor
...
Must intimate to security
holder
...

S8(1)(b)- Periodical Allowance
Must be justified by one of the s9 principles and make reasonable use of the resources of the
parties
...

Only granted under S9(1);
(c) – Children under the age of 16 to share the burden of bringing them up
...

(e) – Can get periodical without time limit if one spouse faces serious financial hardship
...

Only made in exceptional circumstances:
S13(1)(a) on granting of decree of divorce
S13(1)(b)when court specifies (risk of one dying)
S13(1)(c) After decree of divorce if there has been a material change of circumstances

Time limits:
S9(1)(c) normally when children reach 16 if it is made in respect of the children- youngest
child must reach 16
...


S13(14)- Can backdate, vary, recall, convert into one capital sum or transfer of property
...
Husband had to pay the wife periodical
allowance for three years of £1400 per month
...
Woman was 58 and was unemployed because she was working on family farm
...
£500 a month for 1 year
...

Dever v Dever 1988 SCLR 352- marriage lasted 6 years
...

Got £100 per month for 6 months
...

S8(1)(baa) -Pension sharing order
Includes all forms of insurance policies and pensions
...

Pension sharing order or pension lump sum order
...
Either party can apply or they can
agree themselves how they are going to share the pension- a qualifying agreement
...

Parties share the pension in certain proportions
...

Must be intimated to the pension company
Most pensions can be subject to the order but not the basic state pension
...

Once they have decided what the amounts are it must be made known to the pension
company and the court must be satisfied that it is reasonable
...

Pension must be valued at the date of separation
...

Qualifying agreement must be in the form set by the Divorce etc
...
Must be sent to the insurance company and they have 4 months to sort the
paperwork
...
Pension sum order must be ancillary to the capital sum
order
...

Order is on the pension itself, not on the spouse
...

If an employer goes bankrupt a person can lose their pension and become penniless on
retirement
...

Under lump order a spouse can be entitled to the other's share of the pension protection
fund
...
These are listed in s14 and must
be justified by the principles in s9
...

Larkin v Larkin 1992 SCLR 13- held competent to order the sale of a matrimonial home
...

Thomson v Thomson 2003 FamLR 22- Sheriff postponed the sale of the home until the
summer when one child was due to move from primary to secondary school
...

S14(2)(b) Order for valuation of property:
Only property owned by the parties can be valued- it does not include property belonging to
third parties
...

Held not to be competent- can only have valuation of what is owned by one or both of the
parties
...

S14(2)(d)occupation of matrimonial home:
Order regulating use of matrimonial home and use of furniture and plenishings can only
be granted on or after decree of divorce
...

One of the most important orders- prefers homelessness
...

You are also entitled to manage the home as you normally would
...

s14(2)(e)regulate liability for contents and outgoings of home:
Order regulating liability for outgoings of matrimonial home- court can order one spouse
to pay bills, mortgage etc
...

s14(2)(f) order that security be given for any financial provision:
Orders for security for any financial provision
...

If court makes a capital award and they think the spouse will not pay it, they can order them
to take out a security over the property
...

Geddes v Geddes - dispute over what date the interest should run from
...
Sheriff's decision was upheld- can start
earlier
...

S14(2)(ja) sheriff clerk can execute deed:
Sheriff clerk can sign deeds relating to moveables
Heritage- Sheriff Courts (Scot) Act 1907 s5A
S14(2) (k) ancillary order necessary to give effect to s9

Anti- avoidance order:
S18 allows the court to set aside or vary a transaction
...
The other party could ask the
court to set aside the original award and make a new financial provision
...
It can make any order it thinks fit and can make
an ancillary order
...

Used of one spouse is hiding assets
...

Court can be asked to set aside transaction or interdict the party acting inappropriately
...

Private agreements
S16 allows the court to set aside or vary any agreement the parties have made
...
s16(1)(b)
...
s16)(1)(a)
...
Entered into private agreement in 1988 and woman divorced the husband
because of his adultery
...
They
had a house worth £33,000 with a loan worth £30,500 over house
...
Later she wanted joint minute set aside and wanted to claim capital

sum
...

Court has to:
 Examine agreement from the point of view of fariness and reasonableness
...

 Any evidence of an unfair advantage by one party against the other may have a
codient bearing on the case
...

 Even if an agreement has led to an unequal and possibly a very unequal division of
assets, does not necessarily give rise to an inference of unfairness or
unreasonableness
...
Successful
...

Clarkson v Clarkson 2008 SLT (St Ct)2- Mr Clarkson had a plumber's business and the parties
separated in 2005
...
As a result the company
went into liquidation
...
Everything was done by joint minuteMrs C to get the house, capital sum of £22,000
...
If things were left as per the
agreement, the wife would get far more than the husband and her half share of the
matrimonial property
...
Sheriff after looking at Gillan decided that an error in the valuation of the business
made the agreement unreasonable
...

MacDonald v MacDonald 2009 FLR 13- said that her husband shouted at her to sign the
agreement when the lawyer said not to sign it
...


Matrimonial Property
Only matrimonial property is split up
...

Gifts from third parties are excluded
...

Gifts between spouses are matrimonial property
...

Must be valued at relevant date i
...
Date of separation
...
Court said that the date of separation
was when the husband received a letter from his Wife's solicitor filing for divorce
...

Called Appropriate valuation date
...

A house bought before the marriage may be matrimonial property, as really anything
can count as matrimonial property
...
He divorced his wife and got to keep the house
...
His second marriage ended in divorce
...
Held it was not matrimonial property for the second
marriage because it was not bought for the marriage
...
After the first divorce the husband got the house and the wife got a
capital sum
...
Wife said house was matrimonial property as it was acquired as a family home and it
was held that it was matrimonial property as it bought with the intention to be a matrimonial
home
...

Wilson v Wilson 1999 SLT 249- Mr Wilson owned a farming company
...
Outer
house held that the company property was not matrimonial property because it belonged to
the company which is a separate legal persona
...
After divorce, was the two farms that had been bought by Marshall

and his brother as individuals and not as trustees for the firm matrimonial property? Nounder Partnership act 1890, property is held in trust for the partnership because they were
bought with partnership money and they were a partnership asset
...

Redundancy payments -can be matrimonial property:
Tyrell v Tyrell 1990 SLT 406- Mr Tyrell got a redundancy payment after the date of separation
but before divorce- not to be matrimonial property
...

Damages from delict claims- can also be matrimonial property:
Skarpaas v Skarpaas 1993 343- Mr S was injured offshore on an oil rig and he didn't work
again during the marriage (4 years before separation) £100,000 damages
...
The portion paid over to wife was calculated by deducting future
loss of earnings and solution from the wife
...
He appealed unsuccessfully
...
He had been in a vegetative state
...
Wife
decided to divorce him she was unemployed
...
Court decided it
was matrimonial property- wife got £20,000
...

Trust property- Not usually matrimonial property but will be if you try to conceal assets from
your spouse by placing them in a trust:
AB v CD 2007 Fam LR 53- all the assets were placed into a discretionary trust- the husband
told his wife he put it away from creditors reach
...
4
million to the husband
...

Net Value
Net value of matrimonial property that has to be shared- deduct debts occurred before
the marriage and during
...

s10(2) need to deduct debts incurred by 1 or both parties before the marriage if they
relate to matrimonial property and those incurred during the marriage
...

Latter v Latter 1990 SLT 805- Mrs Latter had money from parents and grandparents to buy a
house
...
Title was in her sole name and so was the contract to buy the house
(missives)
...
The court of session refused to accept the argument and it was
decided the house was not matrimonial property
...

Davidson v Davidson 1994 SLT 506- Parties divorced
...
Is the farm matrimonial property- because she had sold
the shares and bought the farm it was matrimonial property
...

The norm is for equal sharing of the assets
Only departed from if there are special circumstances:
Anything can be argued as special circumstances
...
His friends told him he was stupid and he tried to get a capital sum from the court
...

(b) the source of the funds or assets used to acquire any of the matrimonial property
where those funds or assets were not derived from the income or efforts of the
persons during the marriage;- Court can look at the source of the funding
...
House was in the husband's sole
name and funded solely by him
...
Held she could
not get this because of special circumstances- shortness of the marriage, house paid solely by
him
...
The house was a matrimonial home, but because he had paid for the house,
he got 70% and she got 30%
Jacques v Jacques 1995 SC 327- marriage lasted three years and only asset was the home
which was funded by Mr J
...

Sweeney v Sweeney 2005 SLT 1141-Argues shortness of the marriage, he solely funded the
house and was running it as a business
...


(c) any destruction, dissipation or alienation of property by either person;
Short v Short 1994 GWD 21-1300- Mrs S without her Husband's knowledge took out a number
of loans secured over the matrimonial home and she forged her husband's signature and
dissipated the funds
...

Russell v Russell 1996 Fam 21-5- wife gave up her job and lost money- held not to be
dissipation of resources
...
Held not to be dissipation
...

Budge v Budge (No1) 1990 SLT 319- Husband's only source of income was his croft and argued
he should not have to sell and divide it- court allowed unequal sharing
...
Considers who is funding the costs of the divorce
and make provision for it
...
Both criteria have to be met
...
s9(1) (a)
The net value of the matrimonial property should be shared fairly between the parties to
the marriage
...

Relevant date
...

S11(7) conduct of parties disregarded unless the conduct has adversely affected the financial
resources
...


Principle 2 S9(1)(b)
Fair account should be taken of any economic advantage derived by either person
from contributions by the other, and of any economic disadvantage suffered by either
person in the interests of the other person or of the family
...
g
...


S11(2) the court has to decide whether the economic advantages or disadvantages by
one spouse have been balanced by the economic advantage or disadvantage by the
other spouse
...

S9(2) defined economic as “advantage gained whether before or during the marriage
and includes gains in capital, in income and in earning capacity”
S9(2) defined contributions as “contributions made whether before or during the
marriage; and includes indirect and non-financial contributions and in particular, any
such contributions made by looking after the family home or caring for the family
...
He was happy for her to not to work
...

Walker v walker (no1) 1989 SCLR 625- married for 26 years and she stays at home with
children whilst he built up successful businesses which she contributed to- she got more than
her half share
...

Adams v Adams 1997 SLT 144- both spouses were computer programmers
...
When they split up Mrs adams said she was economically
disadvantaged and wanted compensation for it
...

Principle 9(1)(b)
Improvements to non-matrimonial propertyCahill v Cahill 1998 SLT (Sh Ct) 96- successfully used for improvements to non-matrimonial
property
...
Mr Cahill
had spent time and money doing it up to a presentable standard and then renting the
property out
...
This
principle was applicable here and he got a greater reward
...
Mrs
Vance had helped on the farm and the value of the farm went up
...

Principle 9(1) (c)
Any economic burden of caring- after divorce, for a child of the marriage under the
age of 16 years should be shared fairly between the persons
...

A child under 16 is a child of the marriage and one accepted into the marriage
...

These are S11(3) a
...

b
...

c
...


d
...

e
...

f
...

g
...

h
...

The court can make an award of periodical allowance under this section if a capital
award or transfer of property is not appropriate
...

One party has to be dependant on the other party
...
s13(2)
Wilson v Wilson 1999 SLT 249- wife was a receptionist and she had to go and retrain at a
college- she got periodical allowance of £200 per week for 2 and half years
Stott v Stott 1987 GWD 17-645- He earned £90 a week and she earned £7 per week
...

A person who at the time of the divorce seems likely to suffer serious financial hardship
as a result of the divorce should be awarded such financial provision as is reasonable
to relieve him of hardship over a reasonable period
...

Court has to look at s11(5);
A
...

B
...

C
...

D
...

E
...

F
...

Award can be made without limit of time
...

Has to be serious financial hardship
...

Johnstone v Johnstone 1990 SLT(Sh Ct) 79- Both 35 and married for 13 years
...

McKenzie v McKenzie 1991 SLT 461- wife was 59 and seriously short of money
...
In certain circumstances the victim can exclude the abusive
partner from the matrimonial home
...
It can also only be applied during the marriage of the parties- up to the
date of the divorce
...

The Non-entitled spouse is the one with no legal rights in the property
...
_ _ _ _ “
...

If the house is bought for the exclusive use for one of the spouses, it is not considered to be
a matrimonial home
...

1981 Act:

1)- The rights of the parties if one spouse has a right in the
property


Children do not have any independent rights under the act but their needs will be
taken into account
...


Occupancy Rights:
S1- Granted automatically under the act
...

Includes any child, grandchild or other person brought up as part of the family
...
This has serious
consequences for conveyancing
...
- not affected by a sale, a lease,
granting a security over the property or transferring the property into a trust
...
Occupancy rights are secured in law
...
– This is done by an affidavit (Sworn statement) and after they have

consented they cannot enforce their occupancy rights
...

S7 The court can dispense with consent if;
1
...

2
...

3
...

4
...

S7(1A) and (1B) Negotiations for a property do not have to have begun when a
person asks the court to dispense with consent
...

2) Renunciation- Get the NES to sign affidavit given up their occupancy rights to the
matrimonial home
...

Buyers position- Occupancy rights are not recorded in land register
...
They are protected by s6(3)(e)
...

Occupancy rights are terminated if:
1
...
ceases to be a non-entitled spouse
3
...
death;divorce
5
...


When a Non-entitled spouse gets occupancy rights they can:
1) Make payments of rates/rent etc
...

Application must be placed within 5 years
...

Either spouse can ask the Court to:
1) Declare the occupancy rights of the applicant spouse
2) Enforce the occupancy rights of the applicant spouse
3) Restrict the occupancy rights of the non-applicant spouse
4) Regulate occupancy rights
5) Protect the occupancy rights

S3(3) Court will only regulate occupancy rights once they have considered the following
factors in s3(3) which are1
...
needs and financial resources of the parties
...
needs of a child of the family
...
if matrimonial home is used in trade or profession
...
Has entitled spouse offered alternative accommodation
...

S3(4) non-entitled spouse gets chance to be heard in court first
S3(7) compensation available in certain circumstances
Black v Black 2011 SLT (Sh Ct) 157- Action raised under s3 by Mr Black who was seeking
occupancy rights against his wife
...
Mr Black went into hospital for treatment for a mental health disorder
...
He suffered a serious mental health condition
...
An interim hearing happened first
...
Sheriff refused the interim order because he did not think it was
neither necessary nor expedient
...

Exclusion Order
Used in abusive marriages
...

Either party entitled or not can ask the court for the order
...

S4(2)---- “ the court shall make an exclusion order if it appears to the court that the
making of the 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 which is or would be injurious to the physical or mental
health of the applicant or child
...
Need
to consider factors in s3(3)
...

2) Interdict prohibiting the non-applicant spouse from entering the home
3) Interdict prohibiting the non-applicant spouse from removing any furniture
S4(5)The court may (optional)
1
...

2
...

3
...

4
...


McCafferty v McCafferty 1986 SC 178
...
4 points of
criteria
...
Provided affidavits to court from her and her daughters
...

⦁ Is the court satisfied that the conduct is likely to be repeated if cohabitation continues
...

⦁ Is the order necessary for the future protection of the physical or mental health of the
applicant or child
...
He had
inflicted abuse, assaults, constant drinking, gambling
...
Two children aged 13 and 11 terrified of their father
...
Court
granted interim exclusion order
...
Mrs M was the tenant of the house
...
The delay was because she
applied for legal aid and it took a long time to go through
...
She was
successful despite the delay in proceedings
...
Parties were joint tenants of local authority
house and woman had left the house with daughter to live in woman's hostel
...


2) If both have legal title;
At common law both have right of occupancy in any event, but regardless the court can still
declare any dispute about occupancy rights and grant exclusion orders
...

As an owner you can insist that the property is sold and the money divided- there is no
defence
...

S19 Court has discretion whether to allow this
...
Once parties are
divorced they do not have protection of s19
...

Berry v Berry 1988 SCLR 296- Wife wanted to sell the house and raised the action against
her husband
...
He was well off and could easily find another

house to live in because he had loads of assets
...

Crow v Crow 1986 SLT 270- Mr C raised action of division and sale against Mrs C
...
She used this successfully and court had to consider needs of wife and child
...

B v B 2010 WL 2695000- Woman was the man's second wife
...
The man was admitted to hospital with dementia
...
He gets worse in condition and ends up
needing 24 hour care
...

She raised defence of s19
...
Wife couldn't care about husband and
he drained the bank accounts
...


3) Tenanted property
Can ask court to transfer tenancy under S13
...
- court can
transfer without agreement of landlord
...

Certain types of tenancy are excluded s13(7) and (8)
Exceptions can be made for agricultural buildings or crofts
...

Guyan v Guyan GWD July 2001- House jointly tenanted
...
Wife had three children and only one was from the marriage
...
Husband
had mental health problems and would not find it easy to adjust to a move
...
Children had to come first
...
Sheriff thought husband could cope with move if he got sufficient help
...
scotscourts
Two men living together in Dundee as tenants
...
Court looked at
criteria decided none of them were good tenants and there was nothing to choose between
one or the other
...
They decided to give it to the quieter of the
two because he was potentially going to be the best tenant
...


Interdicts
Matrimonial interdicts- S14(2) matrimonial interdict is
(a) to restrain or prohibit any conduct of one spouse towards the other spouse or a
child of the family or

(b) prohibits a spouse from entering or remaining in the matrimonial home; any other
residence ;any place of work; any school attended by the child
...

Normally get an exclusion order as well as an interdict
...

If a spouse asks court for interdict and exclusion order the court must attach a
power of arrest
...

Interdict only the court will attach a power of arrest if necessary
...
Power of
arrest is that if they breach the interdict, then you can phone the police and the police can
arrest without warrant- they will stay in cells until court hearing
...

S8(3) harassment is causing alarm or distress and a course of conduct must involve conduct
on at least 2 occasions(unnecessary if domestic abuse- do not need to show course of
conduct)
...

S8(5) court can grant damages; interdict and non-harassment order
S8(5)(b) cannot have both NHO and interdict at same time
...

Police can arrest the person s4
...

Power of arrest is only up to 3 years
...

Domestic Abuse (Scotland) Act 2011
If court states a common law interdict is a domestic abuse interdict under s2, and you get a
power of arrest, if interdict is breached it is a crime
...

Anyone can ask for a common law interdict
...
If it is breached it automatically
becomes criminal charge and is subject to criminal law
...


Adoption
Adoption and Children (Scotland) Act 2007

Most of the act has been in effect since September 2009
...

Under S31 Children must be available for adoption and both parents must have consented
to the adoption or the Court must have granted a permanence order
...

The Child:
 Must be under 18 years of age
...

 If they are to be adopted by non- family members then they must have lived with
the potential adoptive parents for 12 months
...

 The child must be medically examined and a report must be sent to the court
showing an assessment of the Child’s physical and mental health
...

J and J v C tutor 1948 SC 636- Couple adopted a child and later they found that the
child was brain damaged which was sustained at birth
...
Claimed no proper medical tests were
carried out prior to the adoption
...
Held that an adoption order is not a contract between
the parties but is a decree effecting the status of the child which could not be set
aside because the couple had been misled into applying for it
...
There was a risk of brain damage at birth
...

Couple raised action of delict for negligence against Glasgow council
...
The employees of the council did not have the medical
knowledge to accept all the blame and the action against the council was dismissed
...


Welfare of the Child:
 Welfare principle- under S14(3) the Court and the adoption agency need to
safeguard and promote the welfare of the child throughout the Child’s life as the
paramount consideration
...

 S14(2)- they must look at all the circumstances of the case
...

 S14(5)- When placing a child for adoption they must take into account the views of
parents, guardians and other relatives of the Child
...




S14(6) must consider if adoption is best option for the child or whether there is some
better practical alternative for the child
If other option adoption does not proceed s14(7)

Access to records:
 S55(4)(b) – child can access their records when they are 16
 Counselling is available for adopted children
 Parents have no right to see the records
...
Placed on case record of adopted child
...

No Payment permitted:
 S72- Money cannot exchange hands
 Adoption agencies can make payment to adopters under Adoption Allowance
Scheme (section 71)
Who can be adopted?- Anyone under the age of 18, who is not married or in a civil
partnership, and who, if over 12 has consented to the adoption
...

Who can adopt?Couples (Section 29):
 One must be domiciled in British Isles or habitually resident for at least one year
...

Step Parent adoption (S30(3):
 Most common kind of adoption
 Adopt as a single person provided part of a relevant couple
 Birth parent must be 18 and domiciled in BI or habitually resident in BI for 1 year
 Sometimes better to give step parents PRR

Adoption Agencies:
 S119 must arrange all adoptions
...

 S1 each local authority must provide an adoption service
 S1(5) counselling; guidance must be given
 S4 plans must be prepared and published
 S9 all needs of all parties involved must be assessed
 S45 Adoption Support Plan must be provided to each member of the family
 Comes to end when child is 18
Reporting
 S16 Court must be satisfied child seen at home- visited and report prepared
...

 Can contain terms and conditions court thinks fit s28(3)
 Subject to minimalist principle s28(2)
 Not possible if child been married or in civil partnership

Parental Consent (S31):
 All parents/guardians must consent to the adoption
...

 Court can dispense with their consent
...

 Parent defined in s31(15)
 Guardian defined in s119
Parental consent of Unmarried father:
 S105 - if local authority know identity and whereabouts of the father and knows he
has no PRR and an adoption or permanence order is proceeding they MUST give the
father notice
...
(that the action is proceeding in court
...
She refused to identify the father
...
The child was put to foster carers as soon as
born and mother wanted her adopted
...
Asked court for guidance as to whether the girl's family be
approached to home the child against the wishes of the mother and what was the
position of the father in the law
...
Not in the interests of the
child to make enquiries with the wider family
...
The paramount consideration
was the child's welfare- placed with potential adopters
...
She was a former drug addict and she appealed the decision because members of
the child's family knew where she was or knew how to get in touch with her
...

 (c) p/g has PRR and is in the opinion of the court unable to satisfactorily discharge
those responsibilities or exercise those rights and this is likely to continue
...
s31(3)(d)- fall back provision
...
She said that this provision of the welfare of the
child is not compliant with the right to a family life under article 8 of the ECHR 1950
...
Inner house held it was compliant
with the ECHR then mother appealed to Supreme Court
...
The child's
welfare had to be the paramount consideration for the court
...
Sets up test of necessityreflects intent of parliament
...
Court
would only use this section if there was an overriding requirement that the adoption
should proceed for the sake of the child's welfare
...
Held the word was not so
imprecise that it lacked legal certainty
...

The ability to dispense with consent is a residual power which can be used when
circumstances dictate- it is used as a sort of safety net
...
The parents were both from Pakistan and
the father had killed an older child and was imprisoned
...
The foster family were very good and from Pakistan
and the child had contact with her brother and birth mother
...
Court held it was best
the child be adopted and dispensed with her consent
...
Children had not lived with parents for 3 1/2
years
...

X v Y- boy is 14 and his father had residence, his mother had a lot of contact
...
Dad had married other
woman and the boy said he wanted to be adopted by his stepmother who raised the
adoption order
...
She did not consent
to the adoption, and so the court would have to dispense with her consent
...
They granted the stepmother parental rights and residence although she did
not ask for it
...

 S15(4) in other situations must have lived with applicants for 12 months
 Court proceedings are private
 Curator ad litem s108 safeguards interests of the child- someone who acts on behalf
of the child
...

 Witnesses agreements
 Most adoptions both the posts are the same person if the court is happy with that
...

 Adopted Children Register s53

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Not open to public inspection

Effects of adoption:
 Adoptive parents get PRR
 Natural parents lose PRR
 Inherit on estate of adoptive parents
 Birth ties still relevant for marriage
Open adoption:
 S28(3) Adoption order can contain any terms or conditions
...

 Court can allow contact with birth family if in child’s best interests
...

 Parents who have lost PRR through adoption can apply for a contact order under
s11(3)(aa) 1995 act with leave of the court
...
Girl was taken into care when she was year old
...
The foster parents said they would adopt
...
It was an exceptional case and not to be taken as a precedent
...

WGM and AJM Petr 2010 CSOH 41- Boy was being adopted and parents wanted contact
after adoption went through
...
The Court of Session allowed itthree times a year the adoptive parents would have to write to the birth parents giving
news about the child's school, health and include photographs
...
All letters had to pass through Aberdeen city council
...
Allows long term arrangements to be made in relation to
where the child is to live; PRR and adoption
...
Three partsCompulsory, Ancillary and third part allows the child to be adopted
...
Only a
local authority can ask for a permanence order, not an individual
...

Guidance lasts until child is 18 and residence 16- Local authority may need more
than this so can apply for ancillary provisions also
...


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Other persons may get PRR
E
...
parents, grandparents
Can extinguish PRR of parents s82(1)(c)- remove PRR if the parent's do not care
for the child appropriately
...

S82(1)(e) court can make arrangements for contact if court considers it
appropriate and in best interests of the child
S82(1)(f) court can decide any question on PRR

Permanence order regarding adoption (S83):
 LA can ask that child be adopted
...

 Parent defined in s83(5) as a parent who has PRR or a parent who by a PO has no
PRR
...

 Conditions relating to an PO
 S84
 A child over 12 must consent to a PO unless incapable
...

 Welfare principle –welfare of child throughout childhood must be considered ( Note
difference in wording in s14
...
Look at religious persuasion, racial origin and
cultural and linguistic background
...

 Cannot have a PO if child is married or in civil partnership
...

 S88 the most up to date PO is the relevant one, if more than one granted
...

 S92 court can vary ancillary provisions on application
...

 S98 PO can be revoked
 S102 once child adopted PO no longer has effect




Child Under Supervision
S95-96 possible conflict-

R(mother of C) v Angus Council at Forfar Sheriff Court ;10th Nov 2010, 2010 GW D 40-806Mother asking to revoke PO
...
Mother lived at various addresses in forfar with different people at different times
...
In 2010 Angus council got a
permanence order for the two younger girls asking for them to be adopted
...
Mother realised what had happened and raised action to revoke permanence
order which had been granted in favour of the council
...
father had been very abused
as a child and had been in and out of residential care
...
Mother had 5 children- learning disability and
low IQ
...
She was expecting her 6th
child and did not know who her father was
...
Things deteriorated because the father was violent and
threatened to kill the social workers
...
They did not get the child back
...
Local authority asked for a PO with authority to adopt the wee girl
...
parents lose PRR and adoptive parents
get them
...
Parents given indirect contact annually by letter
and photograph
...
Father has 14 criminal convictions of a sexual nature, low IQ and health issues
...

Child placed on at risk register and taken into care at birth
...
Annual indirect contact granted
...
Child had never been
looked after by her parents- she was always in care
...
When LA ask for PO with full range
of orders refused because sheriff thought that parents could not discharge their parental
rights, but as the child gets older the needs will change and the parents might be able to
discharge their parental rights
...
Aberdeenshire council
appealed and the decision was overturned as the parents could not look after the child and
it meant a delay in deciding the girl's future
...
Parents appealed t
court of session
...

City of Edinburgh Council Petr (No 2)

2010 FLR 92- father of child raised a challenge to the welfare principle about s84 of the act
stating that it was incompetent and inconsistent with the ECHR
...
s14 applies if the child is to be adopted and s84 is for the
PO but if PO is to contain right to adopt then also look at welfare test in s14
...
Father was extremely violent and had mental health issues
...
Allowed foster family to
adopt the child
...
Potential adoptive parents were
allowed to organise contact with the birth mother on their own terms
...
-Child with foster family, had been seriously
assaulted by one of his parents
...
By the time the PO was
sought, tings had improved and parents were both in work- not enough change to cancel
out long list of previous wrongs
...

Child born in 2003 and mother was drug abuser
...
Father was on a life long ban regarding child
...

Mother was drug user but managed to change her life around
...
Local authority go to court seeking PO order and adoption
...
Girl wanted to be
adopted, she was 8 years old
...
Direct contact was granted to the
mother
...
- two children, both parents had
both been heroin users and mother was a prostitute
...
Mother
was living in England in three bedroom house with another child and was cooperating with
the care services in England
...
Local authority asked for
a PO
...
Sheriff refused PO
...
Child is immediately taken into care
...
The mother is not allowed access to the child
and PRR is taken away a year after
...
She decides to raise
action at European court of human rights against Norway- article 8 violation
...
To lose PR with a view to
adoption is something which should be considered permissible where particularity strong
reasons for such as measure are at hand
...
Court acknowledged mother's circumstances changed within a year and no
attempt was made to reunite mother and child

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