Family lawyers examine Named Persons, contact and cohabitation in SLN Annual Review 2017

Harper Macleod partner Amanda Masson looks at the state of child relocation in Scots law, noting that last year saw an increase in instructions from separated parents and a number of interesting cases including Donaldson v Donaldson, KW v DG and M v F.

Shoosmiths consultant John Fortheringham covers the year in the law of contact. In JM v PK the father, a “serial complainer” was found guilty of contempt and had contact removed.

John writes: “We can easily understand why the Sheriff found him in contempt. However the presence or absence of a contempt is not one of a criteria in Section 11(7) of the Children (S) Act 1995 Act. Furthermore the Sheriff said that the father should have stated a concrete example of discernible benefit to the child. The Inner House pointed out that this effectively put an onus on the father and this, apart from anything else was an error in law. The court agreed with the father that any such removal of a right of contact would, or at least could, be an interference with his Article 8 Right to Family Life and therefore could be justified only by the test of necessity.”

Legal journalist John Forsyth meanwhile examines evidential child welfare hearings in the wake of LA v JJL, which he says “sounds a clear warning”.

SKO’s Caroline Millar looks back on the tenth anniversary of the Family Law (Scotland) Act and provisions for cohabitants while Turcan Connell’s Sally Nash discusses the cross-border enforceability of pre-nups.

Fiona Jones and Janet McCormack of Clan Childlaw give an account of the high-profile Named Persons case, which went to the Supreme Court and saw the justices rule that the act was outwith Holyrood’s legislative competence, for only the second time ever.

They write: “The Supreme Court judgment in this case was a significant recognition of the rights of children and young people. Just the previous month, the UN Committee on the Rights of the Child had highlighted multiple shortcomings in Scots law, policy and practice in its Concluding Observations on the UK’s adherence to the UNCRC. The Scottish Government is considering its response to the UNCRC’s observations.”