Call us today 0141 337 6678

McCarthy Law

Power of Attorney: Knowing and Working with the Limitations

By McCarthy Law October 12, 2017 Power of Attorney

In an age where local authorities are burdened with high volumes of requests in respect of Guardianship applications, there is an increasing need for the creation of valid Powers of Attorney (see our blog ‘CREATING POWER OF ATTORNEY: WHY YOU NEED A SOLICITOR’ here). A Power of Attorney document can confer wide ranging powers on the designated Welfare Attorney, dependent on the specific clauses contained in the Power of Attorney Document. However, it must be noted that the powers of Welfare Attorneys in certain circumstances are restricted in law, regardless of the terms of the Power of Attorney document.

First, section 16(5)(b) of the Adults With Incapacity (Scotland) Act 2000 provides that a Welfare Power of Attorney is not exercisable unless a) the Adult is incapable in relation to matters to which the Welfare Power of Attorney relates, or b) the Welfare Attorney reasonably believes this to be the case. In other words, to act, the Welfare Attorney must 1) have explicit authority in terms of the clauses contained in the Power of Attorney document, and 2) the Adult must have become incapable in relation to those decisions.

Crucially, the Welfare Attorney may not place the Adult in hospital for treatment of a mental disorder against his/her will. This also applies to those medical professionals issuing Certificates of Incapacity created in terms of s.47 of the Adults With Incapacity (Scotland) Act. Such authority must be sought under the Mental Health (Care and Treatment) (Scotland) Act 2003. Under s.36 of the Mental Health (Care and Treatment) (Scotland) Act a medical practitioner examining the Adult can issue an Emergency Detention Certificate and detain the Adult in hospital for up to 72 hours (starting from the granting of the certificate or the Adult’s first admission to hospital under authority of the certificate). The certificate includes the power to transfer the Adult to another hospital for treatment. Longer-term treatment may require an application to the Mental Health Tribunal for a Compulsory Treatment Order in terms of Part 7 of the Mental Health (Care and Treatment) (Scotland) Act.

A Compulsory Treatment Order application can only be made by a Mental Health Officer. It should be noted that there is no requirement under the Mental Health (Care and Treatment) (Act) for the MHO to notify the Welfare Guardian. Once the Power of Attorney document is registered, it would be prudent to send copies of the Certificate of Registration of Power of Attorney (issued by the Public Guardian) to the relevant local authority and to the Adult’s carers, where applicable. This would encourage the local authority, carers and other relevant professionals to dialogue with the Welfare Attorney and ease the process of attending to the Adult’s mental health needs.

If you would like to learn more about Power of Attorney, please visit the website of the Office of the Public Guardian Scotland: http://www.publicguardian-scotland.gov.uk/power-of-attorney

If you would like to create a Power of Attorney, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk

Case Catch Up: Contact and Contempt

By McCarthy Law July 18, 2017 Family Law Advice

Where one parent fails to comply with a court order mandating contact between a child/children and their other parent, there is always potential for an authoritative pushback by the courts against the parent in breach.

In the recent case of CM v SM 2017 SLT 197, two proof diets (full hearings) took place between January and August 2013. One proof concerned a section 11 order in terms of the Children (Scotland) Act 1995, while the other concerned contempt of court. In the latter, there were 17 allegations of contempt by failing to make a child available for contact in terms of a court order. Of the 17 allegations, the Sheriff found the Defender guilty of contempt in relation to 5, insofar as the failure to make the child available was wilful, inexcusably careless or constituted a flagrant disregard for the authority of the court.

It should be noted that the Defender’s solicitor made submissions explaining the circumstances for missed contact, however the Sheriff held that these submissions did not meet the threshold of evidence (amongst other things, they were not properly admitted as such). Therefore these submissions could not be used to mitigate the Defender’s failures. Eventually, the Defender was sentenced to the maximum penalty of 3 months’ imprisonment.

Fortunately for the Defender, on appeal, the finding of contempt was recalled and the sentence was quashed. Amongst other things, the Defender’s appeal focused on the proposed miscarriage of justice of having the contact and contempt proceedings running concurrently and before the same Sheriff. Moreover, the contempt proceedings developed over time, with new allegations being heard which had not been incorporated into the written pleadings submitted at the outset of the case. This created disorder during the latter stages of proceedings, since the cause advanced on incomplete pleadings.

While the Defender escaped condemnation for the failure to obtemper a court order, this case, and others, reveal the very real consequences of disobeying a court order. The lessons of this case and others are simple and grave: obey the Sheriff’s judgement, or face potential criminal sanctions.

If you would like to discuss any matters relating to contact, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk

Crisis in Contact: Safeguarding Children

By McCarthy Law July 18, 2017 Family Law Advice

Recent decisions in the cases of AH v CH [2016] CSOH 152 & J v M [2016] CSIH 52 revealed a disparity in judgments, as each case turned on its unique circumstances. AV v CH concerned a father seeking unsupervised direct contact with his child despite the mother’s fears of child abduction, while J v M concerned a father seeking contact in the face of allegations against of sexual abuse against the child levied against him. The first resulted in a decision to allow unsupervised direct contact (despite the child expressing a preference for no contact), while in the second the Sheriff’s decision to refuse contact was upheld by the Inner House of the Court of Session, where there were reasonable grounds to suspect ‘…some aspect of sexual abuse.’

Every case involving children necessarily demands a delicate approach and careful consideration of the whole circumstances. In AH v CH, the mother’s fear of abduction was considered to be genuinely, though perhaps unreasonably, held. In J v M, the concrete allegations of abuse by the father ‘provided a sound basis for a prediction of deep ongoing hostility’ between the families of mother and father. This distinguished from AH v CH insofar as the allegations were ‘…not a ploy or pretext for shutting out the Pursuer [the father]. It is hostility based on strongly held beliefs.’

Moreover, While AH v CH revolved around conflict between mother and father, J v M involved extensive hostilities between the respective families of mother and father, creating a situation that the Sheriff considered the child would be unable to cope with.

It might be said that the child in AH v CH succumbed to so-called ‘parental alienation syndrome’, in which the child adopts the views and attitudes of one parent against another. If an accurate summation of the child’s experience in that case, this implies a fine line between what is and is not in the child’s best interests. If a child’s perception of one parent has been diminished principally as a consequence of the imbalance of parental influence/parental bias, the courts can rectify the imbalances by restoring the parental rights and responsibilities of this disenfranchised parent, while acting in the child’s best interests. If on the other hand the child’s confidence in a parent is diminished by external stresses – such as hostilities between maternal and paternal families, or abuse suffered at the hands of a parent – the court’s overwhelming, clear-cut duty is to protectively safeguard the child’s best interests, even to the exclusion of contact with a parent.

If you would like to discuss your circumstances in relation to a child, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk

Civil Partnerships for All?

By McCarthy Law May 19, 2017 Family Law Advice

The United Kingdom is not so united in defining the status of same-sex couples engaging (or attempting to engage) in legal unions, given that marriage is a devolved matter. While the Marriage and Civil Partnership (Scotland) Act 2014 and the Marriage (Same Sex Couples) Act 2013 legalised same-sex marriages in Scotland, and England & Wales respectively, same-sex marriages are not recognisable in law in Northern Ireland.

Westminster and Holyrood sought to legally enshrine a new era of liberal acceptance of same-sex relationships, swiftly legislating equivalent status for same-sex couples previously confined to civil partnerships.

With civil partnerships presenting as more or less legal marriage in all but name, Westminster is perhaps regretting not having revealed the Civil Partnership Act 2004.

Public tensions have been stirred by the February 2017 decision of the English Court of Appeal, which confirmed that heterosexual couples are not entitled to enter into civil partnerships, since the Civil Partnership Act 2004 permits only same-sex couples to enter into civil partnerships. The legal position now (except in Northern Ireland) is that same-sex couples can enter into either a civil partnership or a legal marriage. In a recent study conducted by Populus, 57 per cent of respondents answered that all couples should be allowed the right to obtain a civil partnership; 20 per cent said that civil partnerships should be removed altogether and 24 per cent said that they did not know or did not mind the current position.

There is an obvious irony behind the intentions (perhaps even negligence) of Westminster’s and Holyrood’s hasty decisions to legal same-sex marriages. Rather than recognise that the civil partnership is an obsolete legal construct, many are now indignant that same-sex couples have more options – more rights – in choice of legal unions, than do heterosexual couples.

The legalisation of same-sex marriage seemingly brings about more questions than answers. Will the UK government repeal the Civil Partnership Act? Will there be a litany of legal actions by dismayed civil partners stripped of their legal status, and ‘forced’ to marry or remain a couple without legal status? Will the Civil Partnership Act be amended to allow for heterosexual couples to enter into civil partnerships?

Even good intentions come with headaches.

If you would like to discuss a family law matter, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk

Mortgage Repossession: A Corporate Defeat

By McCarthy Law May 19, 2017 Civil Law

A recent decision at Banff Sheriff Court in the case of OneSavings Bank v Burns [2017] SC BAN 20 saw the Defender successfully rebuff a court action for default in respect of a standard security (or mortgage) held by the Defender.

The Pursuer contended that they were assigned a mortgage which had been granted by the Defender. The case was complicated insofar as it involved assignations of multiple securities between two lenders in so-called ‘mortgage portfolio’ sales. (Eerie shades of the ‘Collateralised Debt Obligations’ and other securities-bundle arrangements existing in the financial markets pre-2008? Hopefully not).

It was successfully argued on behalf of the Defender that the assignations were invalid, since they did not conform with the statutory model under the Conveyancing and Feudal Reform (Scotland) Act 1970 act. Therefore the Pursuer did not have title to sue. Whereas it was argued that the assignation made the security cover all sums due to the Pursuer, it was held that the security was only for the sums outstanding at the date of assignation.

Crucially, the style assignation used in this case is said to be relied upon by several lenders, meaning that the implications of this decision may be far-reaching. Moreover, the decision is a further setback to the kind of insider dealings that put financial gain over consideration of the customer’s interests. The decision arguably serves to reduce the disparity in power in the relationship between financial institution and individual.

If you would like to discuss defending against repossession, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk

Fault Based Divorce: Whose Life is it Anyway?

By McCarthy Law April 3, 2017 Divorce

The comparative ease of obtaining divorce in Scotland reflects a disparity in cultures North and South of the border; Scotland is more ‘liberal’, placing greater emphasis on personal freedom, while England is more ‘conservative’, placing greater emphasis on the preservation of marriages. ‘Irretrievable breakdown of marriage’ is the UK-wide ground for divorce. However, the means of establishing this are starkly divergent. Here is how Scotland compares with England & Wales:

SCOTLAND:-

  • 1 or more years continuous separation with consent of both parties;
  • 2 or more years continuous separation where no consent;
  • Adultery, or;
  • Unreasonable behaviour on part of Defender.

ENGLAND & WALES:-

  • 2 or more years continuous separation with consent of both parties;
  • 5 or more years continuous separation where no consent;
  • Adultery (and that the Pursuer finds it ‘intolerable’ to live with the Defender);
  • Unreasonable behaviour, or;
  • Desertion by the Defending party for a continuous period of 2 or more years.

The ongoing English Court of Appeal case of Tini Owens v Hugh Owens puts the spotlight on divorce, and raises new questions on the role of marriage in modern life. In brief, the family court concluded that Mrs Owen’s allegations of emotional absence and mistreatment by her husband were ‘of the kind to be expected in marriage’. Mrs Owens’ claims to be ‘desperately unhappy’ but Mr Owens claims that the marriage still has a ‘few years’. As Judge Munby observed however, ‘It is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be.’

Striking questions surface: should Mrs Owens be forced to remain married against her will? Should she be required to satisfy a court’s standard of her marital contentedness (or lack thereof)? Should legal rules trump individual freedom? Are current rules archaic legal formalities? One thing is clear: marriage is now subject to the spotlight of political theatre. And for those seeking divorce – good lawyers are a must!

If you are desperately unhappy and would like to discuss divorce, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk

Timebar in Historic Abuse Cases: A Roadblock for Justice?

By McCarthy Law April 3, 2017 Uncategorized

Proceedings against a man accused of historic child sex abuses have been abandoned, after the accused successfully appealed a Sheriff’s decision to allow the Crown more time to prepare.

The 77 year old Appellant had been indicted following four alleged incidents said to have taken place when the Appellant was between 14 and 20 years of age. The alleged victims were his sister and sister-in-law, who were between 5 and 15 years of age at the respective times.

The Crown failed to secure evidence from a key witness timeously. The Sheriff subsequently adjourned proceedings in December 2016. However, the High Court of Justiciary ruled that the Sheriff had not taken account of the protracted case history, and that the fault for delay ‘lay squarely with the Crown’.

The fundamental purpose of the law is to secure just outcomes on a case by case basis. Procedural rules exist to facilitate the progress of delivering justice, and are not intended to present as impediments. However, in the present case, the High Court has arguably focused itself on the mechanical application of the law, rather than contemplate what we colloquially term ‘the bigger picture’. The Sheriff seemingly considered matters from this perspective, looking beyond the undeniable botching of proceedings on the part of the Crown (which duly played its role in 13 continued ‘first’ diets, or hearings, and 5 extensions of the 12 month time bar period for bringing proceedings!). In adjourning proceedings, the Sheriff stated with pragmatic frankness that it is futile to ‘…pore over the minutes and examine which party’s motion caused the delay…’.

Nonetheless, the High Court overturned the Sheriff’s decision, and it appears that no judgment will ever be made on whether the Appellant was guilty or innocent.

The present case draws a grim spotlight on the plight of victims of sexual abuse. Though criminal justice has failed the victims, it is possible that respite might be found under civil law. A 3 year time bar exists for victims seeking to raise civil actions for damages for historic abuse. However, ray of hope may shine on victims in the form of rumoured legislation by the Scottish Parliament, which would allow victims to re-raise claims for damages in respect of historic abuse, even if previous actions have failed.

One can only hope that Parliament is ever mindful of situations where victims of horrific abuse have been failed by a legal system which has, on occasion, failed to attain its mantle: Justice.

If you would like to discuss making a claim in respect of historic abuses suffered, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk

The Future of Divorce: Going Online?

By McCarthy Law April 3, 2017 Divorce

How often have you heard a friend or colleague talk about bringing something ‘into the 21st Century’? This pithy phrase is of course a shorter means of expressing the apparent need to modernise, update or otherwise amend something. However, this phrase also represents a general sentiment that just about everything should be subject to change.

And it appears that the traditions of the UK court systems cannot escape this new standard.

During March, The Ministry of Justice conducted a workshop in furtherance of Her Majesty’s Courts & Tribunals Service (the court system for England & Wales) online divorce project. This project proposes a £1 Billion investment in a new online court system, with the supposed aim of reducing existing annual running costs by £250 Million. The proposals include introduction of online hearings, extending court opening hours and hiring more case officers to assist judges.

With family law procedural modernisation under the spotlight, ‘Apply for a Divorce’ aims to be a simple online service targeted at the 98% of uncontested divorces in England and Wales annually. The scheme has been piloted in the East Midlands Divorce Centre, with further trials set to occur across England and Wales.

The general precedent in updating legal processes in the UK reads something like this – what works in one part of the UK is worth trying in another. With defended divorces increasingly being viewed as archaic and unnecessary (see our blog ‘FAULT-BASED DIVORCE: WHOSE LIFE IS IT ANYWAY?’), and with countless public services being adapted for online use, it seems inevitable that at least simplified divorce procedure in Scotland will be similarly adapted for online use.

If you would like to discuss obtaining a Divorce, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk

Medical Negligence – A Game of Settlements?

By McCarthy Law March 3, 2017 Accident Law

With the increasing encouragement of extra-judicial settlement in Personal Injury actions – most notably via the introduction of the Compulsory Pre-Action Protocols in Scotland (see our blog on CPAP here) – some might say that the power gap in legal dispute resolution has been narrowed. On the flip side, others might say that CPAP does not go far enough in balancing the scales, and providing fair access to justice for all.

A recent big-money settlement in London’s High Court re-engages the optimists, however.

A boy suffering a serious brain injury due to oxygen starvation at birth is to receive a £3.6 million settlement from the NHS. His lawyers sued Betsi Cadwaladr University Health Board citing clinical negligence. Despite continuing to deny liability, the NHS have agreed to pay 60% of the total claim value in settlement of the action.

Affirming the settlement, the judge stated it was in the boy’s ‘best interests’ and praised his parents’ ‘total dedication’.

Though an English case not encapsulated by the Scottish CPAP, one cannot help but wonder at the possibilities for fair settlement, should the scope of CPAP be expanded in Scotland to include medical negligence claims. Though ostensibly denying liability, the NHS’s unwillingness to risk a damaging finding of liability was clearly expressed in the massive settlement awarded to the claimant, well over half of the total claim value.

It is this writer’s view that the principle of fair access to justice outweighs the perceived national interest in protecting the reputation of the NHS. Opening up CPAP to medical negligence claims would allow more, genuine Pursuer’s to receive compensation for medical injuries, while at the same time reducing the burden on the public purse and judicial schedules due to unnecessary litigation.

In other words, opening up CPAP to medical negligence claims would be a Win, Win, Win.

If you would like to discuss making a personal injury claim of any kind, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk

CPAP: Levelling the Playing Field?

By McCarthy Law February 17, 2017 Uncategorized

The ‘Compulsory Pre-Action Protocols’ is a systematic, step-by-step approach to resolving personal injury actions without the need for extensive litigation. The Protocols allow for the little man to, for example, pursue compensation for a workplace accident against his negligent employer, who might otherwise subject him to a daunting, lengthy – and costly – legal process.

At present, CPAP only applies for Pursuers seeking compensation for accidents occurring on or after 28th November 2016 . A voluntary measure, the Voluntary Pre-Action Protocol, or VPAP, has been in place for personal injury actions since 2006. However ‘voluntary’ was the operative word; there has been a lack of sanctions for failure to comply with any stage of the protocols, and parties could not be compelled to participate. In other words, while the VPAP was a strong gesture toward fair dispute resolution, powerful Defenders were not legally obliged to participate, nor to adopt the spirit of the protocols.

CPAP, brings the hammer of justice on parties who fail to comply with the protocols. For example, in cases in which a party fails to comply with any stage of the protocol, the court can make an award of expenses in favour of the other party, or sist (indefinitely pause) the action to ensure that the breaching party complies.

The new compulsory status of the protocols is a logical progression from VPAP and should bring about greater access to justice for smaller parties. However, with a compensation ceiling of £25,000 and excluding claims for clinical negligence, professional negligence and disease claims, the current CPAP is certainly restricted in scope. With that said, the bulk of personal injury claims result from road traffic accidents (circa 50%) and other accidents occurring in public cases (circa 21%), and are covered by the new measures. The CPAP therefore provides greater transparency and greater access to justice to parties in the majority of personal injury actions.

If you would like to discuss making a personal injury claim of any kind, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk.