Sexual orientation and family law

On 29th March 2000 the Scottish Parliament passed its fifth piece of legislation, the Adults with Incapacities (Scotland) Act 2000. One small provision tucked away in this important legislation amends the definition of "nearest relative" in the Mental Health (Scotland) Act 1984, in order to include within that phrase members of conjugal same-sex couples1. The relative obscurity of this provision must not hide its import, for this is the first time that legislation anywhere in the United Kingdom has expressly and intentionally given recognition, for civil law purposes, to the existence of same-sex family relationships

Recognition of foreign relationships under the Civil Partnership Act 2004

An examination of the circumstances in which foreign same-sex relationships will be recognised by applying the rules contained in the Civil Partnership Act 200

The changing concept of 'Family' and challenges for family law in Scotland

An examination of the developing notion of "family" within the Scottish legal system and of the future challenges that Scottish family law still has to face

Chasing the chimera : review essay of Nancy Polikoff's beyond (straight or gay) marriage

Reviews Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law, 2008, by Nancy D. Polikoff exploring the debate in the US on the legal recognition of non-traditional forms of family relationships and on the efforts of lesbian, gay bisexual and transgendered (LGBT) activists to achieve recognition for same-sex marriage. Comments on Polikoff's call for the special legal status of marriage to be abolished, and for increased legal rights to be acclaimed as benefits for all families rather than as symbolic victories for the LGBT community. Considers how her arguments apply to the situations in other jurisdictions

Impairment of reputation, dignity and privacy

Placed uniquely at the intersection of common law and civil law, mixed legal systems are today attracting the attention both of scholars of comparative law, and of those concerned with the development of a European private law. Pre-eminent among the mixed legal systems are those of Scotland and South Africa. In South Africa the Roman-Dutch law, brought to the Cape by the Dutch East India Company in 1652 was, from the early nineteenth century onwards, infused with and re-moulded by the common law of the British imperial master. In Scotland a more gradual and elusive process saw the Roman-Scots law of the early modern period fall under the influence of English law after the Act of Union in 1707. The result, in each case, was a system of law which drew from both of the great European traditions whilst containing distinctive elements of its own. This volume sets out to compare the effects of this historical development by assessing whether shared experience has led to shared law. Key topics from the law of property and obligations are examined, collaboratively and comparatively, by teams of leading experts from both jurisdictions. The individual chapters reveal an intricate pattern of similarity and difference, enabling courts and legal writers in Scotland and South Africa to learn from the experience of a kindred jurisdiction. They also, in a number of areas, reveal an emerging and distinctive jurisprudence of mixed systems, and thus suggest viable answers to some of the great questions which must be answered on the path towards a European private law

English and Scottish adoption orders and British parental orders after surrogacy : welfare, competence and judicial legislation

This article seeks to explore two questions. First, given that the legal effects of an adoption order and a parental order made under s.54 of the Human Fertilisation and Embryology Act 2008 are virtually identical while the statutory conditions for each are different, would the granting of one in circumstances designed for the other create any genuine problem and do the differences in aims justify the different conditions for each order? Secondly, when is it right for the court to override statutory conditions on the ground that the welfare of the child requires the order to be made? Does welfare 'trump' all or only some conditions, and if only some then how do we distinguish between competency determining conditions and those subject to welfare considerations? Both questions arise from a decision of the President of the Family Division, in which the judge held (i) that the child’s welfare overrode a statutory requirement, and (ii) that the use of the adoption legislation, which contained no such requirement, would be entirely unsuitable for the circumstances in which a parental order was sought. It will be suggested that this approach is an unnecessary subversion of the expressed will of Parliament; it will be concluded that parental orders, by avoiding the policy balances of adoption, are themselves dangerous and ought to be abolished. These issues will be explored in the context of both Scots and English law because parental orders, though designed to reflect the different adoption rules in each of these jurisdictions, contain elements traced to English law that fit imperfectly into the Scottish system

Freeing orders and fathers who are not parents

The unmarried father always has been more trouble than he is worth and he really ought to be abolished as soon as possible. This was illustrated yet again in three recent adoption cases. It will be recalled that under the Adoption (Scotland) Act 1978, s. 65(1), “parent” is defined to mean the mother or the father who has parental responsibilities and parental rights; and that under the Children (Scotland) Act 1995 parental responsibilities and parental rights are conferred on all mothers but only those fathers who are or have been married to the mother, who have a court order conferring such responsibilities and rights on them, or who have persuaded the mother to sign a s. 4 agreement to share such responsibilities and rights. The result is that the father who has neither married the mother nor obtained a court order or a s. 4 agreement is not a parent and has no right to be heard in the adoption process. But an awkward situation can arise if such a father attempts to become a parent by any of these means during the adoption process

Would Scots Law recognise a Dutch same-sex marriage?

Assesses the likelihood of Scottish law recognising the validity of same sex marriages performed in the Netherlands. Reviews case law concerning the recognition of foreign marriages per se, international private law's treatment of polygamous marriages and possible public policy arguments against same sex marriages. Explains the ways in which Scottish courts may give legal recognition to their consequences, including: (1) by acknowledging that they deny the parties the capacity to marry again for the duration of their subsistence, under the Marriage (Scotland) Act 1977 s.5(4); (2) by accepting the parties' entitlement to statutory protection in areas such as intestate succession or adoption; and (3) by the granting of matrimonial relief including divorce

What level of respect does opposition to same-sex marriage deserve in a democratic society?

The opening of marriage to same-sex couples shifted the legal debate from whether that should be done to the extent to which individuals and organisations can lawfully refuse to engage with same-sex marriage or can continue to argue against such marriages. This raises the question of the level of respect that needs to be shown to anti-LGBT (lesbian, gay, bisexual, transgender) views in a democratic society, a question that ought to have been, but was not, the central issue in Lee v Ashers Baking Company Ltd. By focusing on the right not to express a view that the defendants in that case did not hold, the United Kingdom(UK) Supreme Court avoided examining the views that they did, in fact, hold. The defendants’ belief that LGBT people are sinful, manifested in their opposition to same-sex marriage, is in essence a belief in heterosexual superiority, which is a form of homophobia and therefore inconsistent with the values underlying the European Convention on Human Rights (ECHR), especially that of dignity. This article explores the level of respect such beliefs and their expression can expect to receive in the UK. It concludes that it should be no higher than ‘toleration’. It will identify as the central flaw in the Supreme Court’s approach that it afforded a higher level of respect than toleration, that it allowed the belief in heterosexual superiority to exempt the defendants from a legal obligation that would have to be met by those whose views on homosexuality were more in line with the values of the ECHR