Beruflich Dokumente
Kultur Dokumente
With:
Fitzpatrick v. Sterling Housing Association (1999) 4 All ER 705, Lord
Slynn defined the hallmarks of a family relationship as mutual
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interdependence, the sharing of lives, caring and love for one another,
commitment and support for one another.
o
Ghaidan v Mendoza [2004] UKHL 30,HL held that the term as husband
and wife in Rent Act legislation, should be read as as if they were
husband and wife, thereby concluding that a same sex partner who had
lived with the deceased in a spouse-like arrangement could be treated as
family for the purposes of enforcing housing entitlement.
ECHR 1950
o Article 3 ECHR: Right to protection against torture/inhuman or
degrading treatment imposes both negative and positive
obligations of the state:
o Article 8: Right to respect for private and family life - the ECtHR
has shown willingness to extent Article 8 protection to de facto as
well as de jure family life, particularly where there are children
involved:
Keegan v. Ireland, Application 16969/90 (ECtHR), Judgment of
26 May 1994
o
Article 3 (Best interests of the child): The best interests of children must
be the primary concern in making decisions that may affect them.
Article 4 (Protection of rights): Governments have a responsibility to help
families protect childrens rights and create an environment where they
can grow and reach their potential. In some instances, this may involve
changing existing laws or creating new ones.
Article 5 (Parental guidance): encourages parents to deal with rights
issues "in a manner consistent with the evolving capacities of the child".
The Convention does not take responsibility for children away from their
parents and give more authority to governments. It does place on
governments the responsibility to protect and assist families in fulfilling
their essential role as nurturers of children.
Article 9 (Separation from parents): Children have the right to live with
their parent(s), unless it is not in their best interests. Children whose
parents do not live together have the right to stay in contact with both
parents, unless this is contrary to the best interests of the child.
Article 10 (Family reunification): Families whose members live in different
countries should be allowed to move between those countries so that
parents and children can stay in contact, or reunite as a family.
Article 12 (Respect for the views of the child): When adults are making
decisions that affect children, children have the right to say what they
think should happen and have their opinions taken into account.
Article 18 (Parental responsibilities; state assistance): places a
responsibility on governments to provide support services to parents,
especially if both parents work outside the home.
Article 19 (Protection from all forms of violence): Children have the right
to be protected from being hurt and mistreated, physically or mentally.
Article 20 (Children deprived of family environment): Children who
cannot be looked after by their own family have a right to special care and
must be looked after properly, by people who respect their ethnic group,
religion, culture and language.
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UNCRC is legally binding but difficult to enforce but see per Lord Kerr
(dissenting) in: R (on the application of SG and others (previously JS and others))
(Appellants) v Secretary of State for Work and Pensions (Respondent) [2015]
UKSC 16. Argues in favour of direct applicability of Art 3 UNCRC.
Further Reading:
DfE and MoJ: A brighter future for Family Justice - A round up of whats
happened since the Family Justice Review, 2014
(https://www.gov.uk/government/uploads/system/uploads/attachment_dat
a/file/346005/family-justice-review-update.pdf)
Holt, K and Kelly, N. What has happened since the Family Justice Review:
A brighter future for whom? 2015, Family Law, 45(7) pp.807-813
Cobb, S (2013) Legal Aid Reform Its impact on family law, Journal of
Social Welfare and Family Law, 35(1), pp. 3-19
For much more detailed analysis of impact of human rights on domestic
family law, see S Choudhry and J Herring European Human Rights and
Family Law, 2010 (Oxford Hart Publishing)
Marriage as a Status ?
Brenda Hale, in her article on Equality and Automony in Family law, notes that:
Throughout the history of family law there has been a debate between those
who see the relationship between man and woman, father and mother, as
essentially a matter of individual contract negotiated between them and
those who see it as a matter of status imposed first by the established
Church and then by the State. We do not need to regard marriage as a
religious sacrament to believe that it is more than a mere individual contract.
All the text books say that it is a status. The parties freely contract into it but
they are not free to write all the terms for themselves. Their relationship
affects third parties, most notably their children, as well as themselves. The
State, or rather the community as a whole, also has an interest....
ii.
Marriage as a Contract?
The court should give effect to a nuptial agreement that is freely entered into
by each party with a full appreciation of its implications unless in the
circumstances prevailing it would not be fair to hold the parties to their
agreement.
But see Hales dissenting opinion
iii.
Marriage as a Right
Set out in ss.1-3 and the First Schedule of the Marriage Act 1949;
and
ss.11, 12 and 13 of the Matrimonial Causes Act 1973
Marriage (Same Sex Couples) Act 2013
i.
Gender-related conditions
Since March 2014 it has been possible for same sex couples to marry
as well as heterosexual couples.
Transgendered people
- MCA 1973, s.11(c): Until 2005, transgendered people were not
permitted to marry a member of the opposite sex to that of their
newly acquired gender.
- Corbett v. Corbett ([1971] P 83, HL): held that a persons
gender, for the purposes of marriage, is to be determined
definitively at birth.
- Goodwin v. UK [2002] 2 FCR 577 : ECtHR found 'no justification
from imposing a blanket prohibition on transsexuals with regard
to exercising the right to marry.
- Bellinger v. Bellinger [2003] UKHL The House of Lords stated that
it was for Parliament rather than the courts to change the law on such
an important matter but acknowledged that the current law was
incompatible with the ECHR
-
ii.
Age-related conditions
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Parent-child
Grandparent-grandchild
Brother-sister
Uncle-niece
Aunt-nephew
Half-blood relatives?
Cases of Adoption?
In-Laws?
- B v. UK [2005] 3 FCR 35: The bar on marriage was aimed at
Step relatives?
Cousins?
iv.
OAPA 1861, s, 57
Mental Capacity
vi.
http://www.fco.gov.uk/en/travel-and-living-abroad/when-things-gowrong/forced-marriage/
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CIVIL PARTNERSHIP
1. Introduction
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Dept for Culture, Media and Sport, Comparison of civil partnership and
marriage for same sex couples,
https://www.gov.uk/government/publications/comparison-of-civilpartnership-and-marriage-for-same-sex-couples
Barker, K. (2006) Sex and the Civil Partnership Act: the future of (non)
Conjugality? Feminist Legal Studies, 14: 214
G Morris All Change (Again) The New Law Journal (2014) Vol.164, Issue
7591, January, 11.
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UNMARRIED COHABITATION
1. Defining Cohabitation
- Domestic Violence and Matrimonial Proceedings Act 1976
(s.1(2)): a man and a woman who are living with each other in the
same household as husband and wife
-
Family Law Act 1996: two persons who, although not married to
each other, are living together as husband and wife or (if of the
same sex) in an equivalent relationship (s.62(1)(a) as amended by
the Domestic Violence, Crimes and Victims Act 2004).
3 (per Woolf J)
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
Sefton Holdings Ltd v. Cairns (1988) 20 HLF 124, 126 and 128
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4.
Further Reading:
C Crawford, A Goodman, E Greaves and R Joyce, Cohabitation, marriage and child
outcomes: an empirical analysis of the relationships between marital status and
child outcomes in the UK... Child and Family law quarterly, 2012, June, pp.176197
E. Heaton Whats mine is mine (2013) New Law Journal Vol. 163 Issue 7585, 9
For progress on the current Cohabitation Rights Bill 2013-14, see:
http://services.parliament.uk/bills/2013-14/cohabitationrights.html
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Consider:
Do you agree with the judges decision?
If not, what alternative conclusions might you have reached?
B. Legal parenthood
Commencement of parenthood
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Civil partners
o If the woman receiving treatment is not married but is a civil
partner, her female partner could be classed as a
parent of the child conceived via donation of sperm
and/or eggs or embryo provided that partner consented to the
treatment. In such a case no man may be treated as the
father of the child (s.45 (1)).
o For the partner of the person receiving treatment to be
classed as a parent, the agreed female parenthood
conditions must be met: ss 43 and 44.
o So, what are the agreed female parenthood conditions?
They are equivalent to the agreed fatherhood conditions
under s.37 (above), requiring formal written consent from
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Deceased person
o The position where the man whose sperm was used has
died can be regarded as he father if he consented in writing
to the use of his sperm after his death to bring about a child
and that he be treated as the father of any child. This is the
case regardless of whether the treatment occurred in the UK
or elsewhere.
o R v. HFEA ex parte Blood [1997] 2 All ER 687 CA.
Sperm donor
o Donation in treatment services: the donor is not to be treated
as the father: s.41 HFEA 2008.
Further Reading:
A Bainham, What is the point of birth registration? Child and Family Law
Quarterly 20(4) (2008) 449
1 Welfare Reform Act 2009 Schedule 6 Part 1 para 4 amending s 2 Births and
Deaths Registration Act 1953. There are exceptions to this duty such as inter
alia, where the mother does not know the identity of the father or fears for her
safety if he were to be contacted
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J Fortin, Childrens right to know their origins too far, too fast? Child and
Family Law Quarterly 21(3) (2009) 336
L Smith, Is three a crowd? Lesbian mothers perspectives on parental
status in law Child and Family Law Quarterly 18(2) (2006) 231
A Bainham, Arguments about Parentage Cambridge Law Review 67
(2008) 322
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