Some of the things that we have been involved in recently: lectures, articles, reported cases and more...
1 December 2017
The UK government has finally taken steps to bring before parliament a Remedial Order which will change the law on surrogacy throughout the UK so that, for the first time, applications for a parental order can be made by a single applicant, rather than requiring to be made by a couple.
The change has been necessitated by a decision of the High Court in England and Wales that the current UK wide law was discriminated unfairly against single persons and their children and was therefore incompatible with the European Convention on Human Rights.
Importantly, it has now been confirmed that the remedial Order will include a six month ‘window’ for an existing single parent through surrogacy to retrospectively apply for a parental order.
It is likely to be several months before the Remedial Order completes is progress through parliament and the law is amended.
SKO’s experience in advising on surrogacy related issues in Scotland is unrivalled. If you are contemplating surrogacy, or have any questions about how the change in the law could affect you or your family, please contact Robert Gilmour or Rachael Kelsey.
1 November 2017
We are delighted to announce that our colleague, Caroline Millar, has been promoted to Associate. Caroline joined us in 2012 and works with clients on a full range of family law issues, both in relation to financial issues arising from adult relationships and arrangements for children.
31 October 2017
Alison Edmondson is chairing the Family Law stream of CLT’s Scots Law 2017 conference at Murrayfield today and will be joined by John West, who is delivering a presentation on the continuing significance of EU law for family lawyers post-Brexit.
30 October 2017
The problems faced by same-sex individuals who have married here in Scotland, but who are originally from outwith Scotland, having their status recognised in their home state are coming to light- much as was the case when civil partnership was introduced over a decade ago. The issues down south (and in France) were highlighted recently in Pink News but may well be more acute for individuals in Scotland because of differences in how we have introduced equal marriage.
Couples who are in an overseas civil partnership can marry in Scotland by converting their overseas union into marriage. After same-sex marriage was introduced the Scottish Government specifically extended the provision to individuals from outwith Scotland. This goes further than England and Wales, where marriage conversion is only available to individuals who entered into a civil partnership in the UK.
If you are affected by these issues you can get in touch with Rachael Kelsey who can put you in contact with those lobbying for recognition.
26 October 2017
Rachael Kelsey is speaking this afternoon at the CIArb (Chartered Institute of Arbitrators) Scottish Branch Dispute Resolution Conference 2017. She will be speaking about dispute resolution models in family law and then chairing a roundtable discussion on arbitration in family law, with particular reference to the FLAGS (Family Law Arbitration Group Scotland) model, which she helped create.
24 October 2017
John West is speaking at a seminar hosted by the Society of Solicitors in the Shires of Selkirk and Peebles today about the impact of Brexit on day-to-day family law practice.
18 October 2017
Alison Edmondson is speaking at the Law Society of Scotland 'It's the Law - Wills, Trusts and Succession' conference in Glasgow today on issues arising from assisted reproductive technologies and legal parentage.
13 October 2017
Scottish charity, Together (Scottish Alliance for Children's Rights) have published their paper, "Impact of Brexit on Children and Young People" today. Rachael Kelsey was among the professionals and academics involved in providing information and insight to the report's author, Maria Doyle of the University of Edinburgh.
The detailed Report concludes that more than 10% (5,604) of all children born in Scotland in 2016 are at risk of losing legal protections in the areas of child custody, child abduction and child maintenance.
Together is an alliance of over 370 children’s organisations, academics, and interested professionals. Their vision is that the rights of all children in Scotland are protected, respected and fulfilled, as enshrined in the UNCRC and other human rights conventions.
11 October 2017
SKO have retained their place in the first rank for Family Law in Scotland in the Legal 500. The rankings note that, "The ‘utterly professional and brilliant’ team at SKO has ‘significant international expertise and exceptionally skilled lawyers’, who are ‘particularly well versed in dealing with high-value financial provision cases’."
28 September 2017
SKO have three practitioners recommended as 'Leading Family and Divorce Lawyers' in this years Doyles Guide 2017- more than any other firm. We are one of the three 'First Tier' firms, a ranking we also hold in Chambers and Partners and the Legal 500.
25 September 2017
After nine years at one end of George Street, SKO have moved to the other end- 18 George Street, Edinburgh EH2 2PF. Opposite the George Hotel, our new home gives us more space and purpose built facilities for our clients and colleagues. Our email, web and DX/LP addresses are unchanged, but our phone numbers have changed. The main number from today will be +44 (0)131 322 6669.
6 September 2017
Caroline Millar is delivering an in-depth seminar on financial provision on separation for MBL Seminars. The seminar, which is aimed at fellow solicitors, will see Caroline drawing on her expertise to analyse the key statutory principles and also provide solution-focused answers to tackle thorny issues which can arise.
We are specialists when it comes to advising on the financial issues resulting from the breakdown of relationships - for more information, please contact any member of our team.
10 August 2017
Rachael Kelsey and John West are featured as guest-bloggers for London-based specialist family law firm, Family Law in Partnership. Their blog considers whether to bring maintenance applications and divorce proceedings in Scotland or in England & Wales, and also poses questions about post-Brexit domestic family law practice. You can find the blog here.
10 July 2017
We are delighted to announce that our colleague, Brittany Thomas, has commenced her traineeship. Brittany has been working with us part-time since the beginning of the year and now that she has obtained her Diploma in Professional Legal Practice from the University of Edinburgh joins us as Trainee Solicitor. Brittany will be working closely with John West and Rachael Kelsey and assisting primarily in financial provision on divorce and pre- and post-nup advisory work.
12 June 2017
Alison Edmondson is chairing the Family Law stream of CLT’s Scots Law 2017 conference today and will also deliver a presentation with Susie Swift and Andrew Paterson on company, partnership, tax and succession issues.
Caroline Millar is also speaking at today’s CLT conference and will focus on the legal framework of surrogacy arrangements and the importance, if any, of legal parenthood.
8 June 2017
Alison Edmondson is speaking at the Law Society of Scotland 'It's the Law - Family' conference in Edinburgh today on issues arising from second marriages, including pre nups, succession and planning for the future.
6 June 2017
Alison Edmondson is delivering a paper today at the World Congress on Family Law and Children's Rights in Dublin on Changing Family Formations: The Older Individual and their Family. She will be exploring the question of whether current legal provisions adequate to address the specific needs of an ageing population in the family law context.
23 May 2017
We are delighted to announce that Susan Oswald has been elected to the Law Society of Scotland Council as representative for the constituency of Edinburgh. Commenting on her successful election, Susan said that she was looking forward to getting to work straightaway with her priority being to promote the interests of fellow solicitors in Edinburgh and beyond. Susan wished to thank everyone who took part in the election.
If you have any queries or issues you would like to discuss with Susan, please do contact her directly.
18 May 2017
The most recent issue of The Edinburgh Law Review is now available and contains a special section on family law. There are a number of articles by academics and practitioners on family law hot topics, such as surrogacy and enforcement of cross-border orders.
Of particular note however is the article by our Alison Edmondson, who comments on the recent Inner House of the Court of Session financial provision on divorce case of Jack v Jack. Alison focuses on how this case is helpful when considering what approach the Court may take when making decisions about financial provision on divorce or dissolution in the context of commercial and multi-generational businesses. A copy of Alison’s article can be found here (paywall).
17 May 2017
Rachael Kelsey was on BBC Radio 4 today answering legal questions on Moneybox Live. The programme looked at the phenomenon of “The Bank of Mum and Dad” and the implications for families, individuals and society as parents and grandparents increasingly find themselves supporting adult children financially. The phone-in specifically considered what happens to the money if the child forms or ends a relationship. You can listen again here.
12 May 2017
Susan’s primary goal for standing is to help promote the interests of fellow solicitors in Edinburgh and beyond. Susan is also keen to use her expertise to assist the Law Society of Scotland in upholding the provision of excellent legal services across Scotland.
Votes must be received by the Law Society of Scotland by noon on Thursday 18 May 2017. You can find out more about the elections and details of how to vote here.
8 March 2017
Caroline Millar presented at The Society of Law Accountants in Scotland Conference in Perth on the rights and responsibilities of civil partners/spouses to financial provision on dissolution/divorce with an emphasis on clients who need not only family law advice but also private client advice (such as tax planning). It is often important to ensure that when options are being explored those are not considered in a vacuum, and so we recognise the importance of working in multi-disciplinary teams to make sure that our clients are given the best possible advice to be able to make informed decisions.
Please contact Caroline or any other member of our team for more information.
3 March 2017
Two recent judgments from the Court of Session concerning child abduction underline, once again, that if you are considering a move abroad with your child then obtaining clear and unequivocal consent from the other parent is absolutely critical.
In the Petition of KS v MG  CSOH 26, Lord Pentland refused to order the return of a child from Scotland to Poland, from where his father had alleged the child had been wrongfully removed in August 2015. This case was somewhat unusual in that, whilst proceedings were raised in May 2016, the judgment was only issued last month. Ordinarily, applications for return as between Member States of the European Union should be dealt with within six weeks. It is also quite rare for applications for return to fail, due to the limited defences open to the parent who has wrongfully removed or retained the child. The father in this case was unsuccessful because there was an existing court order from Poland, which was sufficient to show that the removal of the child was not wrongful. The child, who was 10 years old, was also against returning to Poland, which would have been taken into account by the judge had the court order from Poland not been determinative.
The law surrounding child abduction is fairly settled and so it is quite unusual that Scotland’s supreme civil court, the Inner House of the Court of Session, was asked to consider an appeal about whether a child should be returned to Australia. In CM v ER  CSIH 18, the Inner House upheld the decision of the judge at first instance and confirmed that the order for return should stay in place. The mother, who had removed the child from Australia in May 2016, unsuccessfully argued that the child had become sufficiently integrated in Scotland to the extent that they had acquired a new habitual residence here. Rather, in line with the guidance issued in by the Supreme Court of the United Kingdom in the case of AR (Appellant) v RN (Respondent)  UKSC 35 (a case in which we acted for the International Academy of Family Lawyers), the Court of Session found that the child remained habitually resident in Australia and so an order for return should be made.
Please contact Stephanie Smith for more information if you are planning to relocate abroad.
27 February 2017
Caroline Millar is featured in this month’s Journal of the Law Society of Scotland. Her article looks at two recent Court of Session decisions (AH v CH  CSOH 152 and J v M  CSIH 52) and considers the extent to which one parent's views and attitude may play a determinative role in the other parent's role and relationship with their child post-separation.
Caroline's article can be found in the Journal itself, or online here.
15 February 2017
Alison Edmondson delivered a seminar to the Edinburgh Branch of The Society of Law Accountants in Scotland on the financial aspects of family law with a particular focus on cohabitants' rights on death or separation.
With cohabiting couple families now the fastest growing type of family relationship in the UK, it is important to be aware that whilst there is specific provision for cohabitants in Scotland the right to make a claim on the breakdown of the relationship or on death is usually more limited than would be for a spouse or civil partner. What's more, the constituent parts of the UK all treat cohabitants' rights differently. For example, there is little or no protection for cohabitants in England & Wales - something which Resolution is currently campaigning to change.
There are very strict deadlines for making claims in Scotland, and so advice should be sought as soon as possible. For more information, please contact Alison or another member of the team.
8 February 2017
Susan Oswald and Stephanie Smith attended a seminar in London hosted by Reunite entitled 'International Parental Child Abduction: Moving Forward in the Commonwealth'.
Speakers Margaret Casey QC from New Zealand and Maja Groff from the Hague Permanent Bureau examined issues around parental child abduction involving Commonwealth countries, and also highlighted new developments in the law on child abduction, the most notable of which is the recent accession of Pakistan to the 1980 Hague Convention on Child Abduction.
3 February 2017
The International Comparative Legal Guide to Family Law 2017 has now been published. The Guide provides information about several family law issues including jurisdiction, divorce, cohabitation, and child abduction from 19 jurisdictions across the world. You can find a copy of the Guide here. Our very own Rachael Kelsey and John West were the Guide's contributors for Scotland. Please feel free to download a copy of the Scotland Chapter here.
23 January 2017
We are delighted to announce that our colleague, John West, has been promoted to Associate. John joined us in 2012 and since then has worked on the full range of family law matters. Latterly much of his work has focused on two specific areas: firstly, jurisdiction- which court, or courts, can entertain applications, and, secondly, pensions law issues arising on divorce. John has lectured on both subjects, nationally and internationally.
John’s promotion comes at the same time as we are joined by Brittany Thomas. Brittany, a University of Edinburgh honours graduate, is working with us part-time as she completes the Diploma in Professional Legal Practice, also at Edinburgh. She will become a Trainee in the summer of 2017. She will be working closely with John and Rachael Kelsey and assisting primarily in financial provision on divorce and pre and post nup advisory work.
23 January 2017
The European Court of Human Rights issued judgment on the 19 January 2017 in the case of Laborie v France, in which the claimants successfully challenged the French courts’ refusal to recognise children born as a result of a foreign surrogacy arrangement (the judgement is in French). Surrogacy is illegal in France, and so it is not uncommon for intended parents to engage in surrogacy arrangements abroad. The French courts were once again condemned by Strasbourg for violating the right to respect for private life of the children concerned, following on from similar court actions brought against France in 2014 and 2016.
Such cases have not arisen in the context of Scots law due to the provisions of the Human Fertilisation and Embryology Act 2008, which allow those who commission surrogacy, either in the UK or abroad, to be legally recognised as parents of the child, provided that they apply for, and are granted, a ‘Parental Order’ by the court.
For more information or advice in relation to surrogacy arrangements please contact a member of our team. Enquiries in French should be directed to Stephanie Smith.
10 January 2017
Details have been released of the third FLAGS Core Training for Family Law Arbitrators, to take place in Edinburgh in February 2017. Rachael Kelsey will be one of the three trainers again. Participants who want to become a FLAGS arbitrator need to undergo rigorous training over three days and are subject to an external assessment. SKO have been at the forefront of arbitration in family cases from the outset. Rachael Kelsey, Alison Edmondson and Robert Gilmour are all FLAGS arbitrators and able to act as arbitrator, or assist clients who want to use the arbitration process to resolve their dispute.
19 December 2016
Details of the 'Brexit and Family Law Conference' to take place at the University of Cambridge on 27th March 2017 have been released today. Information about the event and booking details can be found on the Cambridge Family Law Centre conference website page here.
The full day conference is being hosted jointly by the Child and Family Law Quarterly and Cambridge Family Law Centre. Rachael Kelsey will be the Scottish participant on the panel of practitioners at the event, which will involve international experts and practitioners discussing the impact of ‘Brexit’ on family law, from a range of national and European perspectives, and reflecting on the future of international family law practice in the UK.
16 December 2016
We have been overwhelmed by the response to our advert for a trainee, receiving over 130 applications. Responses to all those who applied will be sent out early next week.
Given the number of applicants we have decided to hold an informal reception in the first week in January to which we will be inviting around 20 people. This will give us the chance to tell you a little more about us and the nature of the role and you the chance to meet some of the SKO team. Our plan would then be to invite around a quarter of you back for a more formal interview.
As will be apparent from this, there will more than 100 of you whose applications we can’t take further forward. We are acutely aware that this will come as a disappointment and are hugely grateful for the enormous amount of time and effort so many of you put into writing to us, and sending us your cv. The calibre of the applicants was arresting- we were all too conscious that our experience and professionalism would almost certainly have been found wanting, against yours, at this stage in our careers. You have, to a person, done interesting things, shown tenacity, dedication and enthusiasm. We hope that all of you will find your way into the profession.
9 December 2016
Giving birth to one's grandchild - a legal impossibility
Over the past few days there has been much coverage in the national media of the case of Julia Bradford and her daughter Jessica. Jessica was sadly unable to carry a child following cancer treatment. Her mother Julia carried Jessica and Jessica’s husband’s child, which was conceived through IVF treatment. Their story has been widely reported as Julia “giving birth to her grandchild”. See for example this BBC report.
Unfortunately, little if any of the coverage of this case has made any reference to the legal position. While genetically, Julia may be the child’s grandmother, legally at birth she is the mother. It is impossible under UK law for a woman to give birth to someone else’s child. The law provides that only the woman who carries a child can be the child’s mother. In surrogacy situations, such as that involving Julia and Jessica, the carrier of the child would only cease to be a parent and be replaced by the commissioning parents when a court order, known as a Parental Order, is granted. Most reports of this case have failed to mention that Jessica and her husband will need to go through the process of applying for a parental order to become the legal parents of their child.
The reporting of this case is another missed opportunity to bring to wider public attention this important legal issue. The Law Commission of England and Wales is presently considering whether to embark on a review of whether the law on surrogacy (which is UK wide) is keeping pace with social change. Perhaps the Law Commission would be well advised to begin that process by establishing just how widely understood by the general public the current legal position is.
For more information or advice in relation to surrogacy arrangements please contact a member of our team.
29 November 2016
From 28th November 2016 the charges levied for Sheriff Court actions are going up. If you have a ‘simple’ divorce now in the Sheriff Court the outlays that you are going to be paying are likely to exceed £1,000 (assuming a two day hearing and only the most basic motion procedure). If the action is more complex you could easily end up nearer the £2,000 mark. The other mandatory expense in the Sheriff Court is the employment of a shorthand writer, which is generally something north of £300 per day.
One of the perceived barriers to arbitration in family cases is that the cost of the Arbitrator is an ‘extra’ expense, that would not be incurred if you were litigating in the public arena of the court. With the costs now at this level it must be the case that in many Sheriff Court cases it is now cheaper to arbitrate than litigate- there being no outlays or shorthand writers fees due and where, in many cases, post-arbitral award the parties can simply make use of the simplified or ‘do it yourself’ divorce process costing £120 in total.
SKO has four FLAGS- Family Law Arbitration Group Scotland- arbitrators. If you want to discuss arbitration as a way of resolving matters and/or our fixed fee arrangement contact Rachael Kelsey or Robert Gilmour for more information.
29 November 2016
SKO are recruiting: traineeship opportunity
We are looking for a trainee (or assigning trainee) to come and work with us now. As Scotland’s largest niche family law firm, top-ranked in both Chambers & Partners and the Legal 500, the traineeship will be specialist and focus exclusively on family law.
The successful applicant will be instinctively curious; bright; highly numerate and literate; interested in people; diligent and enthusiastic. We’re looking for someone who wants to be a family lawyer.
The successful applicant will initially be part of a team who primarily advise in contentious high value financial provision cases/matters where there are jurisdictional elements involved. There will be scope however for the trainee to experience other aspects of family law during the course of the traineeship. An interest in any of European/International law, tax and/or corporate law, in addition to family law, would be of particular interest to us.
Please send a copy of your CV with a covering letter to firstname.lastname@example.org
The closing date for applications is 16 December 2016.
28 November 2016
The case concerned an application by a father (B), who sought an order allowing him to take his children on holiday to Algeria. The mother (A) opposed the order on the basis that, she was concerned that, once in Algeria, B would not return the children.
This judgement provides a useful overview of the factors relevant in determining “temporary relocation” cases. In particular, it reinforces that careful consideration has to be given to the evidential requirements in cases where an order is sought allowing children to travel to jurisdictions which offer limited, or no, internal mechanisms for return and which are not signatories to the 1980 Hague Convention. If you would like to know more about the decision or have queries relating to holidays or trips abroad with your children you can contact Caroline or any of the other team members at SKO.
14 November 2016
Alison Edmondson is featured in this month’s Journal of the Law Society of Scotland. Alison analyses whether there are alternative remedies for former cohabitants to explore at the end of their relationship, be it on death or separation, if the strict time limits for making financial claims (in terms of the Family Law (Scotland) Act 2006) have elapsed.
Alison’s article can be found in the Journal itself, or online here.
11 November 2016
John West is one of twelve speakers at the IAFL, ‘Hot topics in EU Family Law’ conference in Madrid this week. He is the only Scot presenting, and joins colleagues from Italy, Spain, Denmark, the Netherlands, France and England and Wales. The conference has been a sell-out, with over 150 participants from across Europe and the US meeting to talk about, amongst other things: international prenuptial agreements; maintenance; child relocation and the jurisdiction of the courts in relation to children. John has been asked to speak with Avvocato Carlo Rimini from Milan on the Maintenance Regulation. They will be looking at Regulation five years on and, in particular, the cases of Re V  EWHC 668 (Fam)- an intra-UK decision of the High Court in England and Wales- and the European Court of Justice case, A v B Case C-184/14.
2 November 2016
We are delighted to have retained our place in the top band of Chambers and Partners UK Guide to the Legal Profession this year with four of our lawyers being ranked as leading individuals.
The directory noted that we are known for being, ‘Especially experienced in international matters, including separations and division of assets across multiple jurisdictions’ with clients' noting our particular strengths as, ‘they solved a messy legal situation with great dexterity- I was really happy with them’ and ‘There is an immense consideration and care for the psychological welfare of clients: I have not experienced anything like this much care at any other law firm in the UK.’
1 November 2016
Alison Edmondson has written for the STEP (Society of Trust and Estate Practitioners) Journal about capacity issues that arise under Scots law in divorce and cohabitation cases. Alison has particular experience of dealing with the issues that arise for vulnerable clients where there are concerns about their capacity; the implications for such individuals of legal proceedings involving them and the international enforcement of orders designed to protect them, and the management of their assets.
28 October 2016
This is hugely important, and welcome. Whilst there is obviously a considerable degree of uncertainty in relation to the post-Brexit landscape it may be that UK citizens will enjoy the additional benefits of these proposals, for at least a small period of time before the UK’s exit from the EU- depending on when the recast takes effect.
The Commission’s proposals to change the terms of the Brussels II Regulation (variously called Brussels II revised or Brussels II bis) make improvements to the EU Rules that protect children in the context of cross-border parental responsibility disputes related to custody, access rights and child abduction. The changes are designed to ensure that children will have the opportunity to be heard in all proceedings concerning their situation; will improve cooperation between member states’ authorities; allow for rapid enforcement of decisions across member states and also provide for more efficient procedures to tackle cross-border parental child abduction.
The existing Regulation has applied in the UK since 1 March 2005. Although it only applies in cross-border cases within the EU, and does not apply in intra-UK cases, the Regulation did also result in change to domestic Scottish law when it came into force, providing a new framework for the jurisdiction of the Scottish Courts.
It's fair to say that the original Brussels II Regulation took us unawares somewhat and there was anxiety at the time about what the impact of the Regulation would be on Scots law. Having become used to the Regulation in the last decade, it is now pretty much universally regarded as having been a positive development for citizens across the EU- UK citizens among them. SKO broadly welcomes the Commission’s recast proposals and a separate article will be published shortly which will outline the main changes.
Change to the Regulation will require unanimity of all member states and we don't yet know if/when the recast Regulation will come into force. While there was concern, post-Brexit, that the UK would prevent adoption of the recast Regulation, it does seem that, in Family Law at least, it is business as usual as we get on with the day-job and work constructively with our European colleagues.
14 September 2016
SKO retains its top-tier ranking and is 'a go-to firm' according to The Legal 500 UK 2016/17 edition for Family Law in Scotland.
6 September 2016
A busy day of speaking commitments for SKO! Alison Edmondson and Jenny Maciver were both speaking at today’s Law Society of Scotland Update Conference. First up was Alison with an overview and case law update regarding the financial entitlement of cohabitants in Scotland. Jenny then followed with a review of same-sex marriage in Scotland, now well into its second year.
15 August 2016
Mediation has been under the spotlight as a result of the BBC’s recent fly-on-the-wall documentary, Mr v Mrs: Call the Mediator. Alison Edmondson, who is accredited by the Law Society of Scotland as a Family Mediator, has looked at whether the tv programme is representative of the mediation process in Scotland. A copy of Alison’s review, which is featured in the August edition of the Journal of the Law Society of Scotland, can be found here.
All of our directors are accredited Family Mediators, meaning that we have more mediators in our team than any other firm in Scotland. For more information, please contact, Alison Edmondson, Susan Oswald, Robert Gilmour or Rachael Kelsey.
23 June 2016
The latest edition of Scots Law Times contains an article co-authored by Robert Gilmour and Janys Scott QC of Westwater Advocates reporting on the first Scottish case arising from the failure of fertility clinics to ensure that appropriate consent forms were obtained from unmarried couples undergoing fertility treatment using donor sperm (‘What’s in a form? Parenthood of children born following IVF treatment' (SLT 2016 , 18, 87-91)).
The case, heard by Lord Brailsford in the Court of Session, provides the first clear indication that the Scottish Courts will adopt the same approach as has been taken by their English counterparts to the question of establishing legal parentage under Part 2 of the Human Fertilisation and Embryology Act 2008.
Robert, who is acting for a number of affected Scottish families, commented, “I hope our article will assist in bringing to the wider attention of the legal community the important issues raised by these cases and also provide hope and reassurance for others in Scotland who may have found their parental status called into question through no fault of their own that a remedy is available."
For more information on these issues see our news articles of 12 September 2015, 26 October 2015 and 8 April 2016, or contact Robert Gilmour.
20 June 2016
He will be looking at recent caselaw, north and south of the border, following on from the important case from September 2015 In the matter of the Human Fertilisation and Embryology Act 2008
(Cases A, B, C, D, E, F, G and H); Surrogacy, and Parenthood in general, under Scots law and the new HFEA rules on Mitochondrial donation.
17 June 2016
Rachael Kelsey has been speaking at the EUPILLAR Cross-Border Litigation in Europe conference at the LSE in London. Organised by the Centre for Business Law and Practice, University of Leeds, and the Centre for Private International Law, the University of Aberdeen, the conference was held within the framework of a research project which is funded by the European Commission Civil Justice Programme.
The research project looked at whether Member States’ courts and the Court of Justice of the EU can appropriately deal with the relevant cross-border issues arising in the European Union context and to propose ways to improve the effectiveness of the European Private International Law framework.
Rachael was speaking on Cross-Border Family Law disputes and the place of Arbitration and Mediation. In particular, as far as arbitration is concerned, the possibilities in Family Law cases for enforcement of awards internationally using the fast track procedures provided for in the New York Convention, and, in relation to mediation, the progress across the EU of implementation of the Mediation Directive.
2 June 2016
We are delighted to welcome Andrew Sauer, an Australian qualified Barrister and Solicitor who will be working with us as a paralegal whilst he qualifies as a Scottish solicitor.
Andrew is a graduate of of the University of Melbourne and before joining us was an Associate with top ranking Australian firm, Kennedy Partners Lawyers in Melbourne.
Whilst working with Ian Kennedy AM Andrew assisted in a number of Scottish matters with team members at SKO, most notably a multi-jurisdictional pre-nup and the UK Supreme Court case of AR (Appellant) v RN (Respondent) (Scotland)  UKSC 35.
- 31 May 2016
John West took part in the recently completed research project on the ‘Conflicts of EU Courts on Child Abduction’ conducted by the Centre for Private International Law at the University of Aberdeen in collaboration with the University of Sussex and funded by the Nuffield Foundation. The working paper by Professor Paul Beaumont, Dr Lara Walker and Jayne Holliday can be found here.
The project looked at the approach adopted by courts across the EU when a non-return order is granted by the destination state in terms of the Article 13 of The Hague Convention on the Civil Aspects of International Child Abduction 1980.
Members of the SKO team are regularly instructed in international child abduction proceedings and so we were able to provide researchers with practical information about the approach taken in Scotland. For more information, please contact John West or Stephanie Smith.
- 27 May 2016
The publication of Thomson Reuters “International Relocation of Children- a global guide from Practical Law” is being celebrated at a book launch at the IAFL (International Academy of Family Lawyers) European Chapter meeting in Amsterdam today.
The Global Guide covers 31 jurisdictions around the world, including Scotland, the chapter for which was contributed by team members at SKO. The Guide covers matters such as the rights and responsibilities of parents; relocation/the right to remove children and child abduction.
- 20 May 2016
The May edition of the Journal of the Law Society of Scotland landed on most desks this week, within which an article co-written by John West and Scott McAlpine of Westwater Advocates was highlighted for having been published online.
The article examined the potential for conflict between the jurisdictional rules for divorce and maintenance in cross-border, intra-UK cases by highlighting the recent decision of Mrs Justice Parker in the case of Re V (European Maintenance Regulation)  EWHC 668 (Fam).
- 18 May 2016
Rachael Kelsey was on Radio 4 today answering legal questions on Moneybox Live. The programme was looking at the phenomenon of “The Bank of Mum and Dad” and the implications for families, individuals and society as parents and grandparents increasingly find themselves having to step in to support adult children financially.
- 13 May 2016
Rachael Kelsey was invited to speak at the ABA (American Bar Association) Family Law Section Spring Conference in the Bahamas on surrogacy and, in particular, how to ensure a smooth transition for babies born in the US being brought home to the UK. Other speakers on her panel looked at the position from a Canadian, Australian, Italian and Greek perspective.
Rachael was one of two speakers from the UK along with Anne Marie Hutchinson OBE QC (Hon) of Dawson Cornwall, who was also speaking in the ART (Artificial Reproductive Technology) section of the conference. Her panel considered the ongoing debate over the tensions that exist between the right to procreate vs the rights of the child. The panel considered the implications when it comes to the issue of whether there should be international regulation of surrogacy and, if so, how that should be tackled.
- 15 April 2016
SKO is delighted to announce the launch of the SKO Family Law Scholarship at the University of Edinburgh. The scholarship was launched today at the Family Law Academic Network Conference in honour of Professor Eric Clive's distinguished contribution to Scots family law.
The first Family Law Academic Network Scotland conference is a two day event: a lecture was given on the evening of Thursday 14 April by Deputy President of the Supreme Court, the Right Hon. The Baroness Hale of Richmond and then a full day conference will take place today, Friday 15th April. Speakers at the conference from across the UK include Prof Kenneth Norrie of the University of Strathclyde, Profs Jane Mair and Janeen Caruthers of the University of Glasgow, Prof John Eekelaar, formerly of Oxford University and now co-director of OXFLAP, the Hon Lady Wise, Janys Scott QC, Prof Elaine Sutherland of the University of Stirling and Prof Hector MacQueen of the University of Edinburgh.
The purpose of the SKO Scholarship is to enable the next generation to make its contribution to the academic development of Scottish family law which is so valuable to those of us in practice. The Scholarship will be open to applicants accepted on a PhD or LLM by Research programme at the University of Edinburgh in a family law related subject and we look forward to seeing that academic work influence the development and practice of family law in future.
- 8 April 2016
This week saw judgment issued in the case of In the Matter of the Human Fertilisation and Embryology Act 2008 (Case G)  EWHC 729. The judgement is a postscript to the much publicised decision of the President of the Family Division of the High Court of Justice of England and Wales, In the Matter of the Human Fertilisation and Embryology Act 2008 (Cases A,B,C,D,E,F,G and H)  EWHC 2602 (see our news post for 12 September 2015) and brings to a close the first tranche of applications to the court for declarators of parentage arising from the failure of fertility clinics to ensure that the unmarried partner of a mother having a child using donor sperm would be the legal parent of that child.
In Case G, as in the other seven cases previously decided, the court was satisfied that declarator could be granted notwithstanding the fact that written forms of consent completed by both partners prior to fertility treatment - a necessary element of establishing legal parentage - were deficient. The particular problem in Case G was that the partners had signed the ‘wrong’ forms. The mother had signed the form intended to be signed by the ‘other parent’ and the ‘other parent’ the form intended for the mother. The situation was further complicated by the fact that the mother was in a civil partnership with a third party at the time of her treatment, which meant the court had to be satisfied that her civil partner had not consented to being the child’s parent. Fortunately the civil partner was fully cooperative and supportive of the application.
The judgment comes shortly after a Scottish Court considered these issues for the first time. In February, in a case in which SKO acted for the applicant (unreported for reasons of confidentiality), declarator of parentage was granted in the Court of Session with the presiding judge approving the decision of President of the Family Division in Cases A-H. Some emphasis was placed by the judge on the desirability of keeping the law in this area in step on both sides of the border.
From a Scottish perspective, perhaps the most interesting aspect of the new decision in Case G is that the court had specific resort to the English equitable doctrine of rectification to remedy the incorrectly completed forms. No such equitable remedy exists in Scots Law. There is however a statutory power to rectify. Although in deciding the Scottish case the court did not require to have resort to that power, further cases which are likely to be brought may require the court to exercise this statutory remedy.
SKO act for a number of parents affected by the failings of fertility clinics in Scotland and we expect further applications to be considered by the court over the coming months. More cases are also pending in England and Wales.
Contact Robert Gilmour for more information.
- 26 March 2016
A comment by Rachael Kelsey on the Herald Article this week, “Separating couples should be obliged to seek mediation, charity says”.
It was good to see the Scottish press publishing a piece on mediation this week, tackling an issue that is hugely important at a time when the funding that Family Mediation Lothian gets from central government (through Relationships Scotland, as the umbrella body for services across Scotland) has just been cut by 13% and where services are at real threat.
Nailing my colours to the mast, and perhaps unsurprisingly as Chair of FML (though this piece is written in a personal capacity) and a CALM (solicitor mediator), I am someone who is evangelical about mediation- there is no better way, in my view, to resolve the issues that arise when a couple decide to separate or where there are other family disputes- how involved grandparents should be, for example, or who should support adult children who are studying.
Mediation is a supremely powerful process: it not only allows the practical issues to be sorted out, the symptoms of disagreement, if you like, but also tackles the big, under-lying issues that are causing the disagreement; the deep-seated infection that is being harboured in the family body, that is causing the poisonous, disagreement eruptions over and over again.
I suspect that everyone could agree that good mediation is a good thing. So the question, if as the article says, “voluntary take up of mediation remains relatively low” is whether making it compulsory 'to consider mediation', as has been the case in England and Wales since 2014, will lead to more ‘good mediation’ in Scotland, ie. will being made to go to a meeting about mediation increase the number of cases where there is an actual mediation process? I am simply not convinced.
Making people attend MIAMs (as they are called in England and Wales- a mediation information and assessment meeting) has not, as I understand it, anecdotally or statistically, increased the numbers of people actually mediating successfully thereafter. I have been told by numerous practitioners down south that it has been a huge backwards step for mediation- the numbers of cases actually proceeding to mediation have dropped as people have been put off the process by the MIAM mandatory procedure. Ironically maybe, being made to go to the MIAM damages the efficacy of mediation as a dispute resolution tool.
Maybe it is because the MIAM, as a part of the accessing the court process, makes mediation feel like it is part of the litigation; maybe the ‘box-ticking’ element of the meeting means that the nuances of difficult family dynamics are lost; maybe the compulsion element has made people feel scared and mistrustful of mediation.
And it is this latter element that really worries me. A corner stone of the mediation process is that it is voluntary. For a ‘good mediation’ there has to be the reestablishment of trust, a safe place where people can be vulnerable and frank. I fear that that would be lost if we embraced a culture of any kind of compulsion when it comes to mediation. As I understand it the Scottish Government have no plans to introduce compulsory MIAMs in Scotland and I would support that being the right way forward.
It is said in the article that family law in Scotland is outdated and lags behind the rest of the UK. That simply isn’t true. There are things we need to work on, certainly, but we have a system that is the envy of the world in many respects. The work that is about to be published by Glasgow University following a four year study funded by the Nuffield Foundation looking at the Family Law (Scotland) Act 1985 underlines how incredibly successful, and well regarded much of our family law legislation is by practitioners, academics and the judiciary alike. The 1985 Act is a beautiful piece of legislation and, I would say, classically Scottish- straightforward, certain, clear, structured, fair.
At the risk of ending on too polemical a note, the Report published last week which is referred to in the article, looked at the operation of the Family Law (Scotland) Act 2006- a piece of legislation which saw a departure from that traditional Scots law approach of favouring certainty and instead embraced the English common law approach of giving the judiciary discretion. As the Report reflects the experiment has not been uniformly fabulous. Let’s not rush into another experiment on the back simply of what is happening down south. Rather, let’s focus our efforts on properly funding the actual mediation process in Scotland, not just tick box meetings that people are compelled to go to as they hurtle into court.
- 24 March 2016
A decision has been issued by Mrs Justice Parker in the case Re V: "European Maintenance Regulation". This is the first reported case in England or Scotland on the operation of the Maintenance Regulation, intra-UK.
For individuals who have connections north and south of the border this case illustrates the huge implications arising from how the Maintenance Regulation was incorporated within the UK: we now have the possibility of bifurcated proceedings- a Scottish divorce, but with maintenance being dealt with concurrently under English law, and vice versa.
When the Regulation was incorporated domestically (by Schedule 6 of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011) provision was made for separate parts of the UK to be treated as though they were separate member states of the EU.
For "maintenance obligations", just like intra-EU divorces, the lis pendens, 'first past the post', rules in the Maintenance Regulation mean that whichever court is first seized will have exclusive jurisdiction. Confusingly, these rules are quite distinct (and completely different) from the domestic provisions that operate to allocate jurisdiction intra-UK for the merits of a divorce action and in relation to all other financial consequences of the marriage.
- 22 March 2016
A busy day for SKO! We continued our support of the University of Edinburgh Diploma in Professional Legal Practice postgraduate course with Jenny Maciver (who is Lead Tutor for the Family Law course) having organised a plenary session on DR for the last session in the Family Law Elective course (watch this space for Jenny’s thoughts on the ten week course, having worked with thirty-eight law graduates about to embark on their legal careers).
Practitioners from across Scotland were involved with contributions from solicitors practicing as FLAGS arbitrators; collaborative family lawyers and CALM mediators and a presentation on the work of Family Mediation Lothian by Rachael Kelsey, who Chairs the Board of Trustees of the charity which focuses on supporting families and children who are experiencing the break up of relationships.
- 22 March 2016
Jenny Maciver is speaking today at the STEP (Society of Trust and Estate Practitioners) Scotland annual Spring Conference in Dundee. Speaking alongside The Hon. Lord Tyre CBE, Charlotte Barbour, ICAS Director of Taxation and Derek Francis, Barrister, amongst others, she will be addressing the family law issues that private client lawyers need to be aware of to include inter-generational gifting, cohabitation and pre-acquired and inherited wealth in divorce cases.
- 17 March 2016
Rachael Kelsey has been invited to speak again at the Annual Family Law Conference in Cape Town, organised by MDT in conjunction with the University of the Western Cape, and now in its 19th year. The conference, which takes place over two days, covers a wide range of topics related to family law in an African and international context. Rachael is presenting with Suzanne Kingston of Withers and they will together talk about the bespoke schemes in Scotland (FLAGS) and England and Wales (IFLA) and on the new South African scheme (FLAFSA). After the conference has finished there will be training over the weekend for South African lawyers who want to be able to act as arbitrators under the FLAFSA scheme, which will be lead by Suzanne and Rachael.
- 18 February 2016
Topics included a recent Court of Session farming case, setting aside Separation Agreements, cohabitants' claims, parental responsibilities and rights, child abduction, child relocation, the recent pension changes, and Scotland’s first forced marriage case.
- 25 November 2015
Day three of Resolution Family Dispute Resolution week (also being the day the Chancellor’s Autumn Statement is released and the outcome of the Comprehensive Spending Review becomes known) and our thoughts turn to money.
The next finding for us to highlight from the research on outcomes in litigated, financial cases in Scotland (undertaken by Jane Mair of the University of Glasgow, School of Law with support from Fran Wasoff and Enid Mordaunt from the Centre for Research on Families and Relationships at the University of Edinburgh) is about financial orders in divorce cases.
3. In only 30% of the cases was an award of periodical allowance (which is support after divorce) sought.
OUTCOME: And then, of those applications, only half were granted. This figure relates to all of the reported cases in Scotland in the last 30 years.
OUR EXPERIENCE: Periodical allowance is support (or maintenance) paid to a former spouse after divorce. As these figures demonstrate such orders are rarely granted by the Scottish courts. The interesting question though (especially though from the perspective of lawyers in England and Wales, where maintenance after divorce is commonplace) is not why so few orders have been granted, but why they are so rarely sought from the court in a Scottish divorce.
The main reason must be that the Scottish legislation on divorce starts from the position that there should be a clean break- it is only in limited situations that the court could order that there should be payments from income, post divorce. The Family Law (Scotland) Act 1985 provides that the court shall not make such an order unless it is satisfied that that an order for payment of a capital sum, transfer of property or pension share would be inappropriate or insufficient to deliver reasonable financial provision. That means that in very many cases periodical allowance could never be granted by the court- which perhaps explains why such orders are sought relatively rarely.
It also perhaps explains why there is an enthusiasm in Scotland for other forms of dispute resolution- the remedies available to the court are in a prescribed form and there is limited scope to craft flexible outcomes. Some creativity and good will deliver a pragmatic and workable resolution.
- 24 November 2015
Day two of Resolution Family Dispute Resolution week and finding number two from the research on outcomes in litigated, financial cases in Scotland undertaken by Jane Mair of the University of Glasgow, School of Law with support from Fran Wasoff and Enid Mordaunt from the Centre for Research on Families and Relationships at the University of Edinburgh...
So, the second finding that we found interesting:
2. 52% of the wives divorcing (or being divorced) were employed:
OUTCOME: Of the wives, 23% were employed full-time and 29% part-time.
OUR EXPERIENCE: We will be interested to see the breakdown of these figures in cases within the last decade, as in divorce cases in Scotland nowadays our experience is that it is relatively unusual for wives not to work at all. What is perhaps interesting- and the subject of discussion with our colleagues south of the border- is whether this is because Scots law favours a clean break, as a result of which support post-divorce is unusual- so women have to work; or whether, rather, the law follows social norms here- because women (post marriage) tend to work in greater numbers than is the case in England and Wales, there is less of a need for support post-divorce. Discuss!
- 23 November 2015
The annual Resolution Family Dispute Resolution week is upon us again! Although Resolution is the organisation of Family Lawyers south of the border, we keep close contact with them and their members given the number of clients we have who are from, live and/or work in, England and Wales (where the law is very, very different). We are also very keen to support the work that they continue to do to promote alternatives to litigation, in family law matters.
Research is about to be published about outcomes in litigated, financial cases in Scotland, which is timely, as we focus for a week on other forms of dispute resolution (DR). The research focused on (mainly reported) cases- cases litigated over the last 30 years, since the Family Law (Scotland) Act 1985 came into force. This study is a follow up to work done previously by the same authors on the use made of Minutes of Agreement- ie. looking at outcomes in matters settled by agreement, outwith the court process. The study was undertaken by Jane Mair of the University of Glasgow, School of Law with support from Fran Wasoff and Enid Mordaunt from the Centre for Research on Families and Relationships at the University of Edinburgh. A number of Solicitors at SKO assisted with the research by participating in a detailed interview which included a vignette designed to elicit how we advise clients (and, indeed, what we advise them!). In this stage of the research 29 senior practitioners were involved- 18 solicitors, 6 advocates and 5 members of the judiciary.
The full report will be published shortly, but in advance of that publication a dissemination event took place in Edinburgh on 18th November 2015- a fascinating taster of the full report to follow. Because many of the outcomes of this research from litigated cases bear on the process of reaching a resolution to financial matters we thought that we should share one finding (and our thoughts thereon) with you each day this (family dispute resolution) week:
So, finding number one:
1. A tiny proportion of cases are litigated to a final conclusion in Scotland:
OUTCOME: in the time since the Act came into force there have been 334,000 divorces in Scotland, but less than 200 reported decisions. To undertake the research the authors had set as their statistical sample the figure of 200 court decisions to be reviewed. They found that in 30 years there haven’t been 200 reported cases, and found that they had to bolster the number of reported cases to be reviewed by looking at unreported cases referred to in those judgements.
OUR EXPERIENCE: this very much chimes with our sense that the vast majority of divorces in Scotland are resolved extra judicially- not always using mediation, collaboration or arbitration though. The most common way to resolve matters is with solicitor negotiation: you instruct a solicitor to work with you, give you advice and negotiate on your behalf. Quite often this is done against the backdrop of court proceedings- sometimes that is useful and helpful. But the important thing to take from this research (and our experience) is that very few cases actually proceed to a final court hearing (or Proof, as it is known in Scotland) and it is rarely too late to resolve things by agreement.
- 11 November 2015
Robert Gilmour on BBC Radio 4 Money Box Live 'Cohabiting' programme. Questions included the financial implications of the breakdown of cohabitation, the implications of owning property with another person, and a comparison between the responsibilities and rights afforded to cohabitants in Scotland in terms of the Family Law (Scotland) Act 2006 and those which might be available to cohabitants in England & Wales in terms of the Private Members' Bill currently making its way through the House of Lords.
- 30 October 2015
Following on from the publication of the Legal 500 rankings earlier in the year, where we retained our place in the first tier, we were delighted with the news that we have also stayed in the top rankings in Chambers and Partners. The directory describes us as, "A highly influential family law boutique covering the full breadth of matters, including complex cases involving child law, financial provision, cross-border issues and the representation of LGBTI individuals." and as, "A professorial, indomitable firm who will do their utmost for their clients.". They note that "The whole firm had a culture of really caring for the client, supporting you and keeping you relaxed and reassured."
- 27 October 2015
The changes that will allow 'three parent' children to be born in the UK for the first time will come into force on 29 October 2015. The Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015 allow IVF therapy to be carried out, in certain carefully prescribed circumstances. The therapy involves the nucleus of a donated egg being removed (leaving the rest of the egg intact). The nucleus of the mother's egg is then implanted either before or after it has been fertilised. Although any baby born will have genetic material from three people he or she will still only have one or two individuals recognised as legal parents- the woman whose egg nucleus was used and her husband or partner, if she has one.
SKO are at the forefront of advising on the Scots family law issues arising from assisted reproductive technology (ART) and surrogacy. Rachael Kelsey and Robert Gilmour can be contacted for more information if you are affected by the issues raised here.
- 27 October 2015
Jenny Maciver is speaking today at CLT Scotland's Scots Law Private Client Conference on what Private Client lawyers need to know about Family Law.
Among the topics to be covered will be guardianship and the family law implications of intergenerational gifting, private company restructuring and other tax planning measures.
- 26 October 2015
Robert Gilmour is speaking at today’s CLT Scots Law Conference in Glasgow on the subject of assisted reproduction.
Among the current issues he will be discussing is the fall out of the Human Fertilisation and Embryology Authority’s discovery of failures in fertility clinics patient consent records following the legal parenthood audit carried out by the HFEA in 2014 audit. The audit gave rise to doubts over the parentage of children whose families’ had no reason to question the legal status of their children. Many families have had to endure the distress of discovering, months or years after their child’s birth, that there may be a question mark of the legal status of one of the child’s parents.
While the English courts have now begun to untangle the consequences of the failures identified, the extent of the problem in Scotland, and the legal position under Scottish Law, remains unclear. Robert will be sharing his knowledge of current developments in Scotland with other family law practitioners.
SKO are at the forefront of advising parents who find themselves unfortunate enough to be notified that there may be a problem with the records kept of their fertility treatment. If you are concerned about how these issues may affect your own family, please contact us for expert, confidential advice.
- 1 October 2015
Rachael Kelsey will be speaking with Sir Peter Singer at the 2nd Annual Johannesburg Family Law Conference on 1st October 2015. She will be talking about Arbitration in Family Law cases under the Scottish FLAGS scheme while Sir Peter will be talking about the corresponding scheme, under English and Welsh law, IFLA. Rachael was one of the founder members of FLAGS which provides a bespoke arbitration service in financial and child cases. Arbitration, as a DR (dispute resolution) model has a number of advantages over traditional litigation: it provides an efficient, flexible and cost-effective way of resolving differences, where a couple need an adjudication. It is private and allows the couple to select their own decision maker from a pool of just under fifty FLAGS arbitrators who are all experienced family lawyers (solicitors and counsel) or former members of the judiciary who have undergone specialist training to act as arbitrators in family cases. More information can be obtained from any of the four SKO FLAGS arbitrators, Rachael Kelsey, Alison Edmondson, Robert Gilmour and Jenny Maciver.
- 29 September 2015
Robert Gilmour spoke today at the Solicitors Group Family Law Conference in Glasgow on the subject of cohabitation claims under the Family Law (Scotland) Act 2006.
- 24 September 2015
Rachael Kelsey will be taking part in the Scottish Arbitration Centre's annual Arbitrator training day- The Arbitration (Scotland) Act 2010: Five years on. She and her former colleague, Sheriff Wendy Sheehan, will be delivering workshops for arbitrators on managing the arbitral process and case management skills. Also taking part will be Jim Mather, Chairman of Homes for Scotland and Government Minister responsible for the Arbitration (Scotland) Act 2010 and Alan Redfern, past Vice-President of the ICC International Court of Arbitration.
- 17 September 2015
SKO have retained their place in the top tier of the 2015 edition of the Legal 500 for Family Law in Scotland and Rachael Kelsey is now the only ‘leading individual’ ranked in Scotland, following the retiral of the only other named person earlier this year.
- 16 September 2015
Whilst also chairing the event, Rachael discussed same sex marriage and acting for LGBTI individuals, including cultural competency and Human Fertilisation and Embryology Act issues arising from the HFEA audit which threw up 'anomalies' in 51 of 109 licensed clinics in UK. Rachael also considered the Scottish implications of In the matter of the Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H) decision.
John reviewed pensions in family law cases, including pension sharing practical tips, pitfalls to avoid and opportunities to grasp; the tax planning issues in pension sharing; dealing with pensions in international cases and the implications of the EU Maintenance Regulation on claims under the Matrimonial and Family Proceedings Act 1984.
- 12 September 2015
Parenthood and the law - a landmark English case with implications for Scotland
Yesterday, a judgment handed down from the High Court in England declared the legal status as parents of seven people who, having successfully undergone fertility treatment, subsequently discovered that they may not in fact be the parent of their child.
It is over two years since it first became apparent that, due to administrative failings on the part of some fertility clinics, unmarried couples undergoing fertility treatment using donor sperm may not have completed the consent forms which the law requires to be completed prior to treatment to ensure that the father, or second woman in the case of lesbian couples, is legally the child’s parent.
In terms of the Human Fertilisation and Embryology Act 2008, prior consent of both prospective parents is an essential element of the creation of parental status for the father or other parent. The Act requires certain forms to be completed and signed to signify consent before treatment takes place.
Shockingly, following audits carried out at the request of the Human Fertilisation and Embryology Authority, ‘anomalies’ in paperwork were identified in a significant number of cases. All those parents affected are understood to have been contacted by the clinic where they received their treatment. In his judgment, Sir James Munby, President of the Family Division, describes the failures of the clinics involved as ‘serious and systemic’.
The judgment interprets the requirements of the 2008 Act so as to allow the existence of prior written consent to be demonstrated by other evidence where forms were completed but lost; and to allow forms which were either incorrectly or not fully completed or which are not in the form prescribed by the HFEA to constitute the necessary written consent.
This will come as huge relief to the families involved and offers hope to others who have been told that they are in a similar situation. Each case will turn on its own particular facts however, and further applications to the court can be expected over coming months
What of parents and children in Scotland who are affected? The 2008 Act is UK wide legislation, but the Scottish Courts are not bound to apply the same approach to interpreting the Act as in England and Wales. It remains to be seen whether a similar approach will be taken when cases come before the Scottish courts, which is expected to happen over coming months.
At SKO we have unrivalled expertise in cases involving assisted reproduction in Scotland. If you are affected by the issues raised in this case or by similar issues, please contact a member of our team for further advice.
1 August 2015
- 22 June 2015
Rachael Kelsey took part in the first Scottish Arbitration Survey on behalf of FLAGS and the report has just been published- see here. Rachael’s comments about the FLAGS scheme of arbitration for use in family disputes can be found at para 7.2.2 of the Report.
The Scottish Arbitration Survey is the combined initiative of the University of Aberdeen, Burness Paull LLP and the Law Society of Scotland. Its mission is to provide core statistics regarding arbitration in Scotland. This report- the first- covers the period from 1 July 2013 to 30 June 2014 and it provides statistics relative to the occurrence of arbitrations in Scotland during that period; procedural trends and attitudes. The Report also provides commentary on the evolution of arbitration since the Arbitration (Scotland) Act 2010, including the role of the courts and the developing scope for the use of arbitration in Scotland- not least in family cases.
- 12 June 2015
SKO have again been successful in defending an application by a mother for relocation, this time of two children to Florida. The Judgement of Sheriff P A Arthurson QC can be found here.
Jenny Maciver, lead solicitor, said, "this case is a salient lesson for any parent who is considering moving their children abroad that it’s vitally important to have a well thought through plan."
We regularly assist parents who want to relocate with their children and those who want to oppose a move. Please contact a member of the team for more information.
- 22 May 2015
Rachael Kelsey and John West acted pro bono for the International Academy of Matrimonial Lawyers (IAML) in the UK Supreme Court case In the matter of AR (Appellant) v RN (Respondent) (Scotland)  UKSC 35.
The appeal concerned the application of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’). Under Article 3 it is unlawful to remove or retain a child in breach of rights of custody attributed to a person under the law of the state in which the child was "habitually resident" immediately before removal or retention.
The IAML is a not-for-profit association of specialist family lawyers practising in 49 countries. Fellows of the IAML are elected on the basis of their experience of family law and their standing in their own jurisdictions. The IAML has over 690 fellows worldwide. It has observer status at the Hague Conference and IAML fellows have attended many of the sessions on the 1980 Convention.
The successful application to intervene in this case was made on the basis that the collective knowledge and experience of the fellows within the IAML would enable us to collate and put before the Court information about how the aspects of the law of habitual residence which were relevant to this case (in particular the role of parental intention) are treated in other jurisdictions. The Right Hon Lord Wilson of Culworth spoke most positively about the contribution made by the IAML- from 24:30 minutes in the afternoon session of the televised hearing- which involved many Fellows from around the world contributing their time on a pro bono basis.
- 13 May 2015
Jenny Maciver provided a family law update to the Faculty of Solicitors of Dunbartonshire. Jenny spoke about a range of topics including arbitration, appealing contact/residence decisions, and how to convert your civil partnership into a marriage.
11 May 2015
27 April 2015
Solicitor vacancy at SKO
We’re looking for someone who is coming to the end of their traineeship/just qualified. They don’t need to have undertaken family law in their traineeship: indeed, we would welcome applicants who have trained in other disciplines, particularly in European/International law, corporate, tax and/or the property law fields.
This is a new role which will involve working with three other solicitors whose practice is primarily financial provision/jurisdiction/novel family law issues advisory work.
The closing date for applications is close of business on Friday 8th May 2015. More information can be found here.
22 April 2015
Rachael Kelsey on BBC Radio4 Money Box Live ‘Ending a Relationship’ programme. Questions included the financial consequences of running a business with someone you are now, no longer, in a romantic relationship with and the implications on divorce of owning property pre-marriage.
- 22 April 2015
Jenny Maciver was speaking at a CLT Scotland seminar on drafting pre-nups, post-nups and other family law contracts in Glasgow. She explored problems with contracts, particularly issues around variation and enforcement abroad, and also considered important drafting issues with delegates.
6 March 2015
- 4 March 2015
Rachael Kelsey represented FLAGS (Family Law Arbitration Group Scotland) at the committee meeting of the Scottish Branch of the Chartered Institute of Arbitrators in Glasgow this evening. The Branch, which has over 460 members, has offered great support and encouragement to FLAGS since its inception. FLAGS are now looking forward to working with the Institute in the future to support them in their objective to promote the use of arbitration, mediation, adjudication and other alternative means of dispute resolution in Scotland, both domestically and internationally.
- 25 February 2015
13 February 2015
We’re delighted to report that Robert Gilmour and Jenny Maciver have successfully completed the rigorous training required to become FLAGS Family Law arbitrators. This brings the number of arbitrators at SKO to four- more than any other practice in Scotland.
Who are FLAGS?
There are now over 40 FLAGS arbitrators in Scotland including former members of the judiciary, counsel and solicitors.
What is FLAGS arbitration?
The FLAGS model provides another dispute resolution method in family law cases- in arbitration parties select their own ‘private judge’, or arbitrator, and they are in control of the issues to be determined. They can agree a fixed fee and timescale for the whole process. This makes arbitration ideal for situations where the couple want to avoid the expense and uncertainty of a public, lengthy and potentially wide-ranging court action, especially if there are discrete financial or child issues, large or small. For example, the kinds of issues that could readily be referred to arbitration, rather than being litigated, might include: if a couple can’t agree whether a child should be able to relocate to another country following separation; how much should be paid, by whom, for school fees or maintenance; whether a particular asset should be sold or not; the value to be attributed to a particular asset, right down to issues like division of household contents.
Is FLAGS arbitration going to take off?
Although arbitration in family cases is still in its infancy there is huge interest in it as a way of resolving disputes. There has been interest from across the world in our scheme. In England and Wales, where a not dissimilar scheme- IFLA- was set up around the same time as FLAGS was launched here, former English High Court Judge, Sir Hugh Bennett has said of arbitration, “In my estimation, the advantages so outweigh what are said, very inaccurately, to be disadvantages, that I confidently predict that within the near future family finance arbitration will complement the court system just as private medicine complements the National Health Service.”
12 December 2014
The newly published judgement of Sheriff Holligan at Edinburgh Sheriff Court regarding the “new” child protection order provisions of the Children’s Hearings (Scotland) Act 2011 is of note to anyone involved with child protection issues in Scotland. Observing that "it is hard to envisage a more important order a court can grant than one removing a child from its parents" the Sheriff reviews the provisions of the 2011 Act and makes a number of observations as to how those provisions should be interpreted and how applications should be dealt with in practice. In particular, he notes that given the complexity of the provisions and the very serious nature of the order involved, the practice of having applications presented by social workers with no legal training is inadequate and that where an order is sought the local authority “requires” to be represented by a solicitor. He also addresses the issue of whether parents have a right to be heard by the court prior to the grant of a child protection order, concluding that given the stringent nature of the test to be applied by the court, the emergency nature of the order and the short duration of any order made, there is no requirement for the parents to be given the opportunity to be heard. In doing so he distinguishes the decisions in J v The Lord Advocate and E v The Lord Advocate, decided under the “old” child protection order provisions, which have given rise to a practice in some local authority areas of prior notification of applications being given to parents. The full judgement can be found here.
10 December 2014
John West was busy chairing the University of Edinburgh Free Legal Advice Centre annual board meeting. The board were delighted to hear that the Centre continues to make great progress, particularly in developing law students’ clinical legal skills, and also about the Centre’s new and exciting projects. The board heard that the very recently launched project, the ‘Small Claims Advice and Representation Service’, in which several students are given intensive training by Kenneth Campbell QC (Arnot Manderson Advocates) to enable them to prepare clients' cases and represent them at the sheriff courts, has already successfully recovered over £1,000 for clients. Much more is planned for the Centre and it's fabulous to see that the great work continues.
10 December 2014
Rachael Kelsey attended the Equality Network AGM. So much work has been done over the last year to bring about equality and improve the human rights situation of lesbian, gay, bisexual, transgender and Intersex (LGBTI) people in Scotland. One of the highlights will arrive on Tuesday (16th December 2014) when Civil Partners can convert their partnership to marriage! And Hogmanay will be even more special than usual in Scotland this year, with the first marriages taking place across the country. There's still work to be done with implementation of the Marriage and Civil Partnership (Scotland) Act 2014 and the next big issue on the agenda for coming years is the equal recognition campaign- to protect the human rights of trans and intersex people. SKO send thanks to all at the Equality Network for their amazing work for equality and human rights! http://www.equality-network.org/
1 December 2014
Rachael Kelsey was speaking at the IAML/STEP conference 'The Family Business and Family Law' in London. She looked at differences in treatment of business and trust interests north and south of the border; forum-dipping opportunities and privacy in family proceedings.
Rachael Kelsey co-author of 'Applications to vary spousal maintenance: what's the Maintenance Regulation got to do with it?' International Family Law  IFL 213-298 December 2014
27 October 2014
- 24 October 2014
8 October 2014
Jenny Maciver speaking at the Dumbarton Bar Association on family law roundup for 2014.
- 1 October 2014
- 17 September 2014
- September 2014
- 23 July 2014
SKO announce appointment of newly-qualified Solicitor, John West, having successfully completed a specialist family law traineeship with the firm.
- 19 June 2014
- 16 June 2014
- 13 May 2014
- 8 May 2014
- 2 April 2014
Publication of the Court of Session case of Janette McVicar v GED and others.
- 30 January 2014
- 27 January 2014
SKO announce appointment of new Associate, Jenny Maciver.
- January 2014
- 29 November 2013
- 29 November 2013
- November 2013
SKO celebrate their five year anniversary.
- November 2013
- November 2013
- 14 October 2013
- 18-22 September 2013
- September 2013
- 8 July 2013
Publication of the Court of Session case of SW v TW – 8 July 2013.
- May 2013
- 29 April 2013
- 21 April 2013
- 18 March 2013
- 4 March 2013
- 21 November 2012
- November 2012
SKO recognised in The Scotsman following retention of place in the top tier of Family Lawyers in Scotland in both Chambers & Partners (2013) and The Legal 500 (2012).
- 16 July 2012
- 14 May 2012
- 25 April 2012
- 16 April 2012
- 16 April 2012
- 6 March 2012
SKO announce appointment of Senior Solicitor, Caroline Millar.
- 6 February 2012
- 3 February 2012
Publication of Court of Session case of CB v MB.
- 23 December 2011
Publication of Court of Session case of A, Petitioner.
- 4 December 2011
- 27 November 2011
- November 2011
- 19 September 2011
- July 2011
- 18 July 2011
- 30 June 2011
- 30 June 2011
- 20 June 2011
- 18 April 2011
SKO profiled in The Journal of the Law Society of Scotland as a practice harnessing the latest IT.
- March 2011
- 17 March 2011
The Scottish Government announce appointment by Her Majesty the Queen of SKO Director, Wendy Sheehan, as resident Sheriff at Glasgow Sheriff Court.
- 1 March 2011
SKO announce appointment of new Director, Alison Edmondson.
- 6 October 2010
- November 2010
- October 2010
SKO retains its place in the top tier of Family Lawyers in Scotland in Chambers & Partners (2011).
- September 2010
SKO moves up to the top tier of Family Lawyers in Scotland in The Legal 500 (2010).
- 9 July 2010
Publication of Court of Session case of Steel v Steel.
- 17 May 2010
- 10 January 2010
- 23 December 2009
SKO office expansion at Forsyth House in George Street, Edinburgh.
- November 2009
SKO recognised in top rank for family law in Chambers & Partners (2010).
- May 2009
- October 2009
SKO recognised as leading practice in The Legal 500 (2009).
- October 2009
- 29 August 2009
- 3 July 2009
- 31 May 2009
- 20 April 2009
- 1 April 2009
- 16 March 2009
- 3 February 2009
- 31 January 2009
The Scotland on Sunday report on Smith v Smith case.
- 24 February 2009
- 27 January 2009
- 6 January 2009
Publication of Court of Session case of Smith v Smith.
- 27 December 2008
Rachael Kelsey in The Scotland on Sunday about what’s on the cards for the year ahead.
- 12 December 2008
- 12 November 2008