Social workers learn from law on why it is done or even why it is done. The knowledge is there and using this knowledge, includes: “Using law and guidance that endorses anti – discriminatory practice” (Adam, D. Dominelli, L. and Payne, M. 2002, P. 72)
With the loss of his Partner, Richard wanted to assure himself about his children’s future and was seeking assistance form social services and consultation with a solicitor. Social services would be able to help him identify areas where Richard can look for help, such as child minding and additional financial support, as well as legal rights. A solicitor can look at things such as compensation for injury at work and can also look at compensation through the courts for the death of his wife. Most importantly if Richard or Johanna had no will’s, then Richard can further safeguard his children’s future by having a will properly drawn up by a solicitor, where he would qualify for legal aid and not incur any added financial costs.
Family Law
The Family Law (Scotland Act 2006 was introduced to the Scottish Parliament on 7th February 2005, it was given Royal assent in January 2006 and the Act commenced May the 4th 2006. this Act included measures to extend the parental rights and responsibilities for unmarried fathers, it was also to reduce the period of separation for divorce. The main arrangements of the act when introduced are:
- Parental Rights and Responsibilities for Unmarried Fathers
- Reducing the Non-Cohabitation Periods Required for Divorce
- Legal Safeguards for Cohabiting Couples and Their Children
- Matrimonial Interdicts
- Cohabitation: Domestic Interdicts
- Domicile of Persons under 16.
Part one of The Children (Scotland) Act 1995, sets out the structure in relationship between parents and children. The family law (Scotland) act 1995, out lines the responsibilities and rights of parents while bringing up their children. Section 1 of the law clearly states these responsibilities as, safeguard the child’s health and development, provide direction and guidance, maintain regular contact and act as the child’s legal representative. Law now however places a greater emphasis on children’s needs, and from this time, the welfare of the child is the paramount consideration of the courts. These parental rights are necessary to enable parents to fulfill their responsibilities, however parental rights do not exist for the parents benefit, but they do exist for the benefit of the child. The Matrimonial Homes (Family Protection) (Scotland) Act 1981, is also applicable to Family Law where this legislation ensures each individual is offered the best service provision in a fair and empowering manner and not discriminated against, creating equality for all.
Richard and his partner Johanna have two children, Eilidh aged 6 years and Jack aged 6 month’s, although they never married, Richards name appears on both the children’s birth certificates, which indicates that both parents had an agreement that both of them have parental responsibilities and rights and this became legal when the fathers name appears on the birth certificates. If this was not the case then Richard would have to seek parental responsibility, acquiring a parental responsibility order from a court.
Education
Parents have a responsibility for the education of their children, within The Education (Scotland) Act 1980. At present this only applies to Eilidh who is of primary school age. There is no indication in the case study to say that Eilidh was not attending school. If this was the case then both parents would have to have had a “reasonable excuse” for their child’s failure to attend school. One “reasonable excuse” which would constitute this would be a death in the family. But at the same time if the case was different not attending school then this reason alone would be looked at and some additional support can be introduced,
Marriage
The UN General Assembly under “Recommendation on Consent to Marriage” puts across
“Recognizing that the family group should be strengthened because it is the basic unit in every society, and that men and women of full age have the right to marry and to found a family, that they are entitled to equal rights as to marriage and that marriage shall be entered into only with the free and full consent of the intending spouses, in accordance with the provisions of article 16 of the Universal Declaration of Human Rights”
Both parents began to live in Scotland when Johanna fell pregnant with Eilidh, they lived as a cohabited couple but reform to the Marriage (Scotland) Act 1977, which was recently amended by the Family Law (Scotland) Act 2006 extended their rights of a cohabiting couple abolishing “Marriage by cohabitation with habit and repute” (law module 1&2, RGU 2007). As a result in Scotland Richard and Johanna meet the requirements of an irregular marriage and can be treated as a married couple by law. This has become possible even though they have never entered into a civil or religious marriage ceremony. “For this, the parties must live together and be regarded as husband and wife for a sufficient period of time” (Fabb & Guthrie, 2000, p86)
Richard can apply to the court for a declarator of marriage to have his relationship established. If it was granted and established, Richard would be given the same legal rights to his children as covered by The Marriage (Scotland) Act 1997, he would have responsibilities and rights for his genetic children. The only rights and responsibilities a father is entitled to is, if he is married to the mother at the time of conception or after. Under section five of The Law Reform (Parent and Child) (Scotland) Act 1986, Richard would be presumed to be the father of Eilidh if both Richard and Johanna acknowledged him as the father and if the child had been registered as his child.
And yet under section three of The Children (Scotland) Act 1995 as Richard was not married to the child’s mother he did not have any rights in relation to the child even if he were to get a declarator of paternity from the court (Law Module, 1&2 RGU, 2007). If a declarator of marriage was rejected, then Richard had no automatic parental responsibilities and rights. But for his youngest child, due to the amended section 3 of The Children (Scotland) Act 1976, the joint registration by both unmarried parents gives automatic parental rights and responsibilities to them both. This only applies to children born after the date of commencement of the Act which was the 4th of May 2006.
As both parents were not married, law dictates Inheritance Rights of Spouses and Civil Partners. In this case, as Johanna is deceased, Richard has the right to inherit the property of the deceased spouse or civil partner even if a will was made or not, he has prior rights and legal rights.
Anti-Discriminatory Legislation
The nature of The Children (Scotland) Act 1995 has been weakened and cannot be taken seriously when a third of fathers who are not married to the mothers of their children are specifically excluded (Fabb & Guthrie, 2000). The United Nations Rights of The Child would suggest The Children (Scotland) Act 1995, was discriminating against fathers. Richard still has an obligation no matter his legal status in the family, married or not which in The Family Law (Scotland) Act 1985, section 11 states that “An unmarried father with no parental responsibilities or rights, however, still has an obligation to support his child financially” (The Scottish Office). Discrimination between married and unmarried fathers on parental responsibilities can be seen as unacceptable, as in this day and age there are a number of children born to unmarried parents. This cannot be assumed that unmarried fathers are less responsible or even uninterested in their children. The European Convention of Human Rights, article 14, prohibits discrimination on such grounds as sex, race or color. Article 8, states that there should be no interference into private and family life except in certain circumstances (Law module 1&2, RGU, 2007), and yet Scottish Law seems to discriminate against Richard as an unmarried father.
The Human Fertilization and Embryology Act 1990, section 13 has written that all children have a right to look for protection and guidance from two adults; however the child of an unmarried father can only look to the mother for this. This position absolves the unmarried father from his responsibilities from his children.
The Disability Discrimination Act 1995 looks to establish whether a person has a disability. In Richard’s case if we assume his mobility is restricted due to his accident at work and walks with the aid of a walking stick, then this has an adverse effect on his ability to carry out day-to-day activities. So accordingly under The Disability Discrimination Act 1995, Richard is a disabled person. Richard can look to social services for assistance, and according to Nisbet (2003) he deduced that “social workers may be the first point of contact for disabled people seeking to access their legal rights” (Social Work and the Law in Scotland, 2003, Pg. 115)
Grandparents Charter
The grandparents charter which at present is only a proposal is for giving wider recognition to the role played by grandparents. In this case Richard’s mother although suffering from chronic angina is unable to offer regular support but can offer some. Grandparents through the courts can apply for guardianship or a contact order. Under section 11 of The Children (Scotland) Act 1995. The grandparent’s charter can also look at non-legislative ways in which the importance of grandparents could be strengthened. These non-legislative ways are to be developed alongside The Family Law Act 2006, they are a Charter for grandchildren (was grandparents), a Parenting agreement for Scotland that can help parents resolve problems over parenting. The charter will also consider ways grandparents might have access to family help and give support to relationships.
Another option for parents if they so wish are to name grandparents in their will and also give them responsibilities and rights to the children, according to section 7 (1) and (5) of The Children (Scotland) Act 1995. Anybody who has legal capacity can write a will.
Parental rights and responsibilities can be withdrawn with a court order if the betterment of the child is not being met.
Rights to Matrimonial Home
This case study states that the family live in social housing, allocated to them from the council. Already stated both parents were not married but lived together in their family home. Under The Matrimonial Homes (Family Protection) (Scotland) Act 1981, which on the outset was designed to protect the rights of a man or woman who was married to the owner or tenant of the matrimonial home this gave them certain rights in relation to the matrimonial home. If we assume that Johanna was the entitled spouse and was the named tenant, then she had the right to occupy the property. But at the same time if Richard were the non- entitled spouse he would still have the right to occupy the matrimonial home and remain in occupation. This right is only a right of occupancy there is no right to inheritance or title of the home.
Now that Johanna is deceased the rights that the surviving member of the relationship has depends on whether or not the deceased made a will. If there was a valid will made then the new provisions of The Family (Scotland) Act 2006 do not apply, what is written in the will stands. If there was no will made the partner in the relationship can make an application to the court, within six months of the deceased’s death for a capital sum from the deceased’s estate. The court will take into consideration matters concerning the application.
Conclusion
It is evident that most of the legislations are centered round The Children (Scotland) Act 1995 and in particular the impact Rights and Responsibilities have on married or non – married couples. Throughout, the common theme seems to be about fathers and the lack of rights they have when it comes to their children. Law had to recognize this and so the introduction of the amended (Family Law Act 2006) addressed these issues. Richard after the death of his partner was faced with bringing up his two children on benefits as there is no indication that he was working after his accident. To legally be responsible for his children, Richard would have had to request from court a declarator of marriage, if there was no will left from his partner stating he was the father to both children or if his name did not appear on their birth certificates.
In this case study, I have touched on a number of legislations which I feel are relevant to this family, especially issues written into The Children (Scotland) Act 1995. Issues also arise relating to discrimination in the case of unmarried fathers, and (The Disability Discrimination Act 1995) Social work departments within local authorities are service providers and are subject to the duties imposed to them under part 3 of (The Disability Discrimination Act 1995).
Equally important is the good practice by social workers in respecting the people they are working with, their rights, and privacy and to provide help and protection to children and families.
WORD COUNT 3140
MN 0612137
Reference
RGU Law Module 1&2 (2007)
Scottish Executive Publications.
Fabb, J & Guthrie, T. (1997), Social Work Law in Scotland, (2nd Edition), Butterworth’s, Edinburgh.
Baillie, D, Cameron, K, Cull, L.A., Roche, J, West, J, (2003), Social Work and the Law in Scotland, Palgrave, London.
The Children (Scotland) Act 1995.
Social Work Act 1968.
United Nations Right of the Child, last cited 7th April 2007
.
Family Law Act 2006, last cited 7th April 2007
Adam, D. Dominelli, L. and Payne, M. (2002), Social Work Themes, Issues and Critical Debates (2nd Edition) Palgrave New York.