There are two famous legal system existed in the world. Roman law which is functioning in European countries and the common law known as English common law. Therefore, Scotland has a mixed or hybrid legal system which is derived from both Roman law and the Common law. It is suggested that Scottish law has more empathy with the civilian systems of law in many aspects. However, for centuries English Common law has been strongly influenced Scottish legal system.
Until 1707, Scotland and England were two separate sovereign countries. Therefore, both countries had their own separate Parliaments which made laws or statutes to follow. In 1707, both countries are agreed to join each other and subsequently both parliaments passed the Act of Union which was ratified by both.
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As a result of union both Parliaments had been abolished and then a new Parliament came in to being as Parliament of Great Britain sitting in Westminster London. Although, both countries now merged into one, but it did not mean that Scottish legal system is now abolished, since the union, and then the treaty of union, preserved the distinguish status of Scots law and its legal system.
Scottish people wanted to retain some freedom to keep their legal system alive. Therefore, Scotland won a referendum in 1997, in which the Scottish people voted for devolution, the powers of the devolved legislature which were pointed out by the Scotland Act 1998.
As a result Scottish Parliament came in to existence in 12 May 1999 with a mandate to make laws in devolved matters such as family law, health and social services, education, housing, land and planning, local government, Agriculture, forestry and fisheries etc., However, the United Kingdom Parliament has authority on reserved matters such as Benefit and social security, broadcasting, defence, employment, foreign policy, immigration and nationality etc., In addition, the Scottish parliament has the powers to make laws in all areas which are not explicitly reserved to the UK Parliament. Furthermore, the UK Parliament holds the ability to amend the terms of reference of the Scottish Parliament and can make necessary changes into areas in which it can make laws.
Scottish Family Law
As said earlier, Scotland has its own family laws as devolved matters. Therefore, Scotland has authority to make their own family laws and implement within their jurisdiction. Children and family law of Scotland slightly different from the UK family law. Scotland has no separate family court where family cases can be heard but rather have Sheriff Court and Court of Session. However, family cases can be brought if more complex at first instance before the Court of Session , and if less complicated or straightforward than in Sheriff Court . Key legislation made in this context is Children (Scotland) Act 1995 and The Age of Legal Capacity (Scotland) Act 1991.
Sources of Scots Family Law
Children and family law of Scotland are mainly rooted in common law, but legislation proved that there are effectively two sources existed:
- a. Legislation approved by the Scottish Parliament, the UK Parliament and the European Union . And
- b. The Case law as applied by the Scottish courts.
- c. Legislation passed by the Scottish Executive, the UK government and the EU.
- d. Case law as applied by the courts.
Furthermore, the United Kingdom, European Union and Scottish statutes are presently providing matrimonial or family law in Scotland. Such as,
- Divorce (Scotland) Act 1976 (1976 Act).
- Family Law (Scotland) Act 1985 (1985 Act).
- Children (Scotland) Act 1995 (1995 Act).
- Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation).
- Civil Partnership Act 2004 (2004 Act).
- Family Law (Scotland) Act 2006 (2006 Act).
- Marriage and Civil Partnership (Scotland) Act 2014 (2014 Act) .
The United Kingdom after 31 of January will no longer member of the European Union as the UK decided to leave the European Union on 16 November 2016 . Therefore, after the 11 month of transition period many EU laws no more binding on the UK or Scotland.
The Children Scotland Act 1995
The 1990s have been incredible in the family law history of Scotland because of many changes happened and new laws came into existence. The most important of these changes were undoubtedly the addition of the children (Scotland) Act 1995. Part 1 of the Act 1995 stressed on parental responsibilities and parental rights . also, directed the Scottish Courts to give due consideration to the views of the children where they are reasonably show sufficient maturity to express themselves. The Act provided courts a direction that their primary concern in child’s issues is the welfare of the child and court should not make decision in relation to the child unless they satisfied that the child’s rights are protected, and this is in the best interests of the child to do so.
The Act 1995 also expressed obligation on local authorities to protect children and respect their views as their right. Also, the Age of Legal capacity (Scotland) Act 1991 was an important statute of 1990s which provided Scottish Courts the age limit of the children when they can express their views without duress or with freedom of will.
Parents responsibilities and Rights
It had been long time understanding that “parental rights only been to protect a child or for the benefit of a child and they are reasonable in so far as they allow the parent to perform their obligations concerning their children. Per lord McCuskey in White v White , stated that “there are four parental responsibilities: (1) to safeguard and promote the child’s health, development and welfare; (2) to provide the child with direction and guidance; and (3) to maintain personal relations and direct contact with the child; and (4) to act as the child’s legal representative”. This means that it is the responsibility of the parents to act on behalf of their child only in the best interests of him/her. Otherwise they must not act as the child’s legal guardian if it is not in the best interests of a child. For instance, raising an action in the court on behalf a child which has less chance of success. They must maintain contact with their children where necessary or possible but there is no breach of responsibility if a child living abroad and parents live in Scotland. Article 5 of the UNCRC directed that parents are responsible to provide reasonable and appropriate guidance and direction to their child until the age of 16 and they are obliged to guide them until the age of 18.
Best Interest of a Child
The children (Scotland) Act 1995 consider child, a person under the age of 16. Article 1 of UNCRC states that “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.'
The best interests of a child‘s principle set by the court in Scottish case of White v White where court decided children’s residence in favour of mother as parents divorced and children living with mother. The father raised an action in the court for contact with the children. The father did not successful as he did not sufficiently evident that it was for the best interests of the children to be in contact with father.
The sheriff court, in reaching his decision and applied the general principle confined in the Children (Scotland) Act 1995 s.1 that it was the responsibility of a non-resident parent to establish personal relations and direct contact with his/her child in the provision of s.11 (7) (a) which obligatory on the court to have respect to what was in the best interests of the child. However, No evidence had been suggested that father had ever performed in any way that could be construed as detrimental to the child, certainly he had made significant efforts to establish contact with his child. Also, there had been indications that the child’s medical conditions linked to the proceedings and that these were likely to worsen if contact continued. It was, however, felt that they would consider again as soon as the child more familiar with father.
Mother’s appeal was successful at the Sheriff Principal Appeal court where the court held that father had not cleared the onus upon him to prove that contact was in the best interests of the child. Father appealed and argued that under the under the Human Rights Act 1998 Sch.1 Part I Art.8 , a parent always had a right of access to his/her child unless it could be proved that it was not in the child's best interests. Mother argued against and stated that the sheriff had make a mistake in applying a presumption in favour of contact, that an onus rested on the parent applying for contact and that if the appeal was going to be allowed, the court should intimate that to the child and afford the opportunity to be heard on the matter.
The appeal court Held, allowing the appeal and restoring the order of the sheriff, that (1) in applying the general principle set out in s.1 and in Sanderson v McManus , that it was helpful to a child's welfare to establish personal relations and direct contact with the non-resident parents, the court had to consider all the relevant material before it and then decide what would be in the best interests of the child; (2) s.11(7)(a) of the 1995 Act did not impose any legal onus in a case where a court made a contact order impulsively and therefore the section could not be read as imposing such an onus where a party had applied for such a contact order to be made; (3) if having considered the material before it the court decided that direct contact would benefit the child, the court then had to decide whether the granting of a contact order was in the best interests of the child or whether the parties should be left to agree contact, and (4) there was no requirement to intimate the intended decision to the child as she was already aware of, and had sought legal advice on, the proceedings and had not requested to be heard.
Opinion, per Lord McCluskey, that it was incredible that a court, in deciding what was in the best interests and welfare of a child, and having heard all the evidence, should base its judgment on the failure of a party to discharge an onus of proof.
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