We are pleased to announce the opening of our new Hamilton office as part of the ongoing growth of the firm. The office is based in the Brandon House Business Centre next to the bus station in Hamilton.
The new new office allows us to offer appointments to clients in the centre of Hamilton which extends our network of offices to 4. We now have offices in Airdrie, Motherwell and Cumbernauld in addition to our new Hamilton premises. The firm has grown from 1 to 4 offices over the course of the last 5 years and our growth is due to the excellent work of our dedicated staff who allow us to provide an excellent standard of legal services to our clients over a range of subject areas including family law, divorce, wills, powers of attorney, guardianship and compensation claims.
We have always had a number of clients from the Hamilton area and we are pleased that our new Hamilton office will allow us to offer more convenient appointments to clients in Hamilton.
We were more than a little surprised to hear that University of Glasgow academics are developing a board game to help the public negotiate the complex legal world of marriage.
The new board game prototype is called Legally Wed. It has been inspired by the work of academics at the university’s School of Law – Professor Jane Mair, Dr Frankie McCarthy and Felicity Belton.
The academics have drawn on their research in family law and the personal wedding stories of family and friends to create the game’s tasks and challenges, which mirror real-life wedding mishaps on the way to the big day.
Players will have to race to plan their wedding and be first up the aisle to win the game. Along the way, in addition to choosing venues, food, outfits and the other trappings of a modern-day wedding, players must complete all the steps required for a legal marriage. If not, no matter how good they look in their Insta story, they will end the day without a spouse.
The team received funding from the Economic and Social Research Council Impact Acceleration Account (IAA) Business Booster Fund to develop their board game prototype.
Dr McCarthy, a senior lecturer in law, said: “We weren’t trying to make a game initially. But we have always been interested in different ways of engaging our students in the area of family law we all work in.
“For example, our first year family law course is assessed by a case study where students have to give legal advice to a family who encounter increasingly ridiculous (but fairly real-life) scenarios throughout the semester. We like it because it requires the students to provide very detailed and accurate legal advice. But it is a bit like a soap opera or a very dysfunctional Mills & Boon serialisation.
“In 2016 we took part in a public engagement festival to engage with our law research and the idea of a board game evolved as a simple and eye-catching idea which would be fun and interactive.”
Ms Belton, research & teaching associate, said: “Games and puzzles have been around for centuries: they are fun, they are educational, they are inter-generational, and they are a focus for creativity, communication and cultural development.
“While recent decades have been dominated by computer games, ‘old-fashioned’ board games are currently experiencing a revival.
“We think this new board game is a great way to help raise public awareness of some of the complexity of the law around marriage.”
The team will continue to develop the prototype and hope it will be available for sale in 2020 for the public.
The rights of grandparents to see their grandchildren is something we are often asked about. Our trainee solicitor, Louise Scullion, wrote a blog post some time ago on the issue and we attached the web address for the full article here:
When considering a request for such an order the court must have regard to some of the following criteria whilst also bearing in mind that any decision must be based on the child’s beat interests: –
1. The welfare of the child concerned will be the court’s paramount consideration and the court shall not make such an order unless it considers it would be better for the child that the order be made than that none should be made at all;
2. The child shall be given an opportunity to express their views and the court shall have regard to those views. This principle applies as far as is practicable and the child’s age and maturity should be taken into account; and
3. The need to protect the child from actual or possible abuse.
A rise in guardianship orders giving guardians control over the affairs of adults who lack the capacity to make their own decisions has been described as concerning recently. A report by the Mental Welfare Commission for Scotland relating to guardianships found that guardianship orders in Scotland rose by 12% to 13,501 between 2017/18 and the previous year.Mike Diamond, the commission’s executive director for social work, said: “Most relatives find guardianship helpful, but it is a complex legal process and takes up a considerable amount of time for care professionals. The law needs to be modernised and streamlined to ensure care can be provided when it is needed, and to better protect the rights of people with dementia and learning disabilities.”
that said, the importance of guardianship orders in appropriate cases is still recognised as offering necessary protection for incapacitated adults. We can assist with guardianship orders where appropriate.
A Fife Council adoption order will go ahead despite an attempt by the father to prevent it. The man was described as aggressive and it was said he kept his two children in a dirty home and failed to prevent contact with a known sex offender. The Sheriff Principal held that living with the man would be detrimental to their welfare. Consequently, the adoption order was granted.
A recent decision accepted a mother had shown a “flagrant disregard” for the court’s authority for failing to stick to a contact order. But no punishment was issued to the mother. However, the Appeal Court found the decision to issue no punishment upon her was “open” to the sheriff, having regard to the facts and circumstances of the case.
The appellant submitted that there had not been proper consideration given to the appropriate consequence of the breach of the order. However, this argument was rejected.
Sheriff Principal Stephen said: “In this appeal it is contended that the sheriff failed in her duty to determine the matter of punishment which was live before her and failed to adequately consider the facts and circumstances of the case. As we have observed, the sheriff may have been unduly concerned about following the same or similar procedure which attracted criticism in C.M. v S.M.
“However, in the following paragraph it is plain to us that the sheriff had regard not only to other sentencing options but in particular the respondent’s personal circumstances and mental health problems which she had been informed of on 20 January 2017. The sheriff took into account the child’s circumstances and the effect of the separation of the mother and ‘T’ which imprisonment would bring about. That has been described as a special consideration and relevant factor in determining sentence or penalty (M. v S. 2011 SLT 918). These factors, in our opinion, constitute sufficient reasons to explain the sheriff’s decision to make no order.
“In these circumstances we reject the proposition that the sheriff failed to have regard to the circumstances of the case. She gave considerable weight to the personal circumstances of the contemnor and the child as she required to do. That she failed to give what the appellant describes as sufficient weight to the nature of the contempt is nothing to the point given that it is in the court’s sole jurisdiction to determine what, if any, penalty to impose following a finding of contempt. The disposal of the case is one which is competent and open to the sheriff to make.”
We are able to assist in family law matters relating to parental rights and child contact and residence so get in touch for further information.
Scotland risks a drop in the standard of legal representation for people accused of the most serious crimes unless the legal aid system is improved, the Faculty of Advocates has suggested.
The Faculty said criminal legal aid was fundamental in a democratic society and allowed the poorest and most vulnerable to be represented by highly skilled advocates. However, that representation was under threat.
“The new fee structure, established in 2006, was intended to undergo triennial review, but this has not occurred to date, in the face of continuing budgetary constraints,” the Faculty stated.
“Unless this matter is addressed with urgency, the consequence over time will be a diminution in the quality of representation generally and, potentially, the eventual disappearance of advocates as pleaders in the most serious cases. No one can take any pride in presiding over a ‘race to the bottom’…the standard of representation is high but will only remain so if the commitment to support that representation is maintained and financial arrangements are improved.”
Generally, the Faculty said it shared the Scottish government’s objective in relation to legal aid of ensuring that rights were made effective for all members of Scottish society.
Highlighting family law, the Faculty said there were problems with delays in granting legal aid, and in granting sanction for counsel and for experts. However, cases under the Hague Convention on child abduction were generally heard within six weeks, showing that matters could be speeded up.
“We consider it is important that legal aid continues to be available for the instruction of counsel in all cases where the State seeks to ‘interfere’ in the family lives of socially vulnerable people, in order to ensure protection of one of the most basic human rights, the right to respect for family life.
“We would hope that the availability of legal aid in a wide range of cases will continue, and consider that if the system of legal aid is flexible enough to respond to changes in the way the law is practised (by, for example, the front loading of family cases) to ensure that counsel (and solicitors) are adequately remunerated for the work they do, then there remains much to commend the current system of legal aid.”
Earlier this year, Rebecca Steinfeld and Charles Keidan, lost their Court of Appeal case, in which they sought the right to be able to enter into a civil partnership, instead of a marriage. The couple reject the traditional notion of marriage and wanted a civil partnership which is currently only available for same sex couples in the UK.
The couple launched legal proceedings against the UK government and claimed they were being discriminated against because of their sexual orientation. All three Judges accepted that there could be a potential breach of the couples’ human rights by not being permitted to enter into a civil partnership instead of a marriage. However, the court felt that the issue was one for the government to address in terms of new legislation.
It may of course be that the government ultimately decides to abolish the concept of civil partnerships, which would put both same sex and heterosexual couples on the same footing. Until then, the differences between the three types of legal relationship ate as follows:-
Marriage
Married couples are entitled to a fair share of the matrimonial property which has been built up during the period of the marriage up until the date of separation. The law does not provide that the assets will be split 50/50 on divorce, although tends to be the starting point to consider division of the assets. Married couples also have rights on each other’s estate upon death automatically, known as prior rights. Civil Partnerships
Civil partnerships confer upon a same sex couple virtually identical rights to that of a married couple. The only difference is that it is not legally classed as a marriage. Financially, exactly the same rights are conferred and the assets and debts are divided in the same way upon dissolution of a civil partnership as they are upon divorce. Cohabitation
The Family Law (Scotland) Act 2006 makes it possible for a cohabitant to make a financial claim following the breakdown of their relationship. However, cohabitants have no automatic right to claim anything upon the breakdown of their relationship and they are not afforded the same level of protection as a married couple would be upon divorce. There is also a very strict timescale for making a financial claim and that must be made within one year of the date of their separation. Same sex and heterosexual cohabiting couples are treated in the same way from a legal perspective. Cohabitants are not automatically entitled to anything from their cohabitee’s estate on death unless provided for in a Will. If they die without a Will, they can make a claim on the estate but it must be made within six months of death.
Therefore, for any heterosexual couple it is worth thinking seriously about their future, particularly when deciding whether to perhaps continue cohabiting or enter into a marriage. If the notion of marriage is one that does not sit comfortably with a couple, then they should be aware of the cohabitation legislation and should seek specialist advice on that from the outset, to ensure that they are aware of their rights and, what they can and cannot expect to receive in the event of a future separation.
The Faculty of Advocates has suggested children’s views in Family actions could be obtained in a way that is better suited to ensuring their views can be fairly obtained with minimal upset to the child.
The Scottish Civil Justice Council (SCJC) has drafted two forms to tell youngsters that an action has been raised and how it affects them, and to give them the chance to put their views to the court.
The proposal is that an initial form would intimate the action and seek any comments at that stage, and a second form would be sent to the child for his or her views if notice has been given that the action is to be defended.
The Faculty said in a submission to the SCJC that it considered the two-stage process to be positive.
“However, we do consider that it may be confusing, and perhaps emotionally difficult, for children to be asked for their views twice in quick succession, as is envisaged in the draft forms.
“It would be natural for a child to think that the judge wants him or her to fill in the form immediately with F9.1 and then to be puzzled or distressed by the receipt of a second form. There will be a risk that the child thinks his or her first answer was in some way unacceptable.
“We would suggest that the Form F9.1 is sent to the child when the action is raised to inform the child of the court action, but that it does not at that stage ask the child to state his or her views.
“The Form F9.2 would be sent out a week later…whether or not a notice of intention to defend had been lodged, in order that the child is given the opportunity to give their view to the court…”
The Faculty noted that it was intended to consult groups of children on the content of the forms, and it agreed that “this will be a valuable exercise.”
The controversial ‘Named Person’ provision of the Children & Young People (Scotland) Act will soon apply to every child under the age of 18, and beyond, if still in school in Scotland by the end of August 2016.
In 2003 the Scottish Government introduced the policy of Getting It Right For Every Child. Its aim was to improve all government services and protective measures provided to children, making sure that every child receives the best possible start in life regardless of their background. This policy was then enshrined in the law by the Children & Young People (Scotland) Act 2014, to ensure that no child suffers or is exposed to harm by intervening at an earl stage in their life.
The ‘Named Person’ provision, therefore, has been introduced to fulfil the state’s obligation to maintain every child’s legal right to welfare. The provision involves the local authority assigning a person, usually a head teacher or health visitor, to every child. This assigned person will then be the single point of contact for that child and their family or guardians.
The intention is that the ‘Named Person’ will provide a more preventative approach to Child Protection; so that no child will fall beneath the radar of the relevant authorities. Instead, if a child is in need of further assistance, the ‘Named Person’ will ensure that this help is provided. They then have the role of coordinating the relevant government bodies to provide this support.
While the focus of the ‘Named Person’ is to maintain the human rights of the child, by doing so the rights of the child’s parents may be compromised. This matter led to the recent case of Christian Institute v Lord Advocate [2015] CSOH 7, in which three individuals and four registered charities requested a judicial review of part four of the Children & Young People (Scotland) Act which refers to the ‘Named Person’. The parties’ challenge was made on the grounds that both the rights of the child and parent have been infringed under the Article 8 of the ECHR, which places a positive obligation on the local authority. Due to the nature of the ‘Named Person’ a guardian is assigned to every child in Scotland regardless of whether the child or its parents’ has granted consent. However, Lord Pentland felt strongly that it was not possible to pre-empt the infringement of ECHR rights, instead this could only be properly assessed once the legislation was fully in force.
Therefore, although many children have already been assigned a ‘Named Person,’ by August 2016 this will apply to every child in Scotland. Only time will tell if this provision will achieve all that the Scottish Government intends. If it is to come under scrutiny again, the decision to intervene by the ‘Named Person’ and state will be justified if proven that the act was necessary in protecting the rights of the child.
Author: Gabrielle Reilly, LLB Hons, currently studying for the Diploma in Legal Practice
The views expressed are those of the author and do not necessarily reflect the views of the firm.
