Case Study Pursuer

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1. What are the relevant facts of this case? [7 marks]

The pursuer, in this case, is the father and he sought a specific issue order that the two children from his relationship with the defender, the mother, be known by the name registered on their respective birth certificates. The defender also sought a specific issue order that the children be known by her surname by swearing to statutory declarations to that effect. The parties were never married.

The pursuer argued firstly that since both children MA and MJ with the agreement of the defender were already registered with his surname on their birth certificates and passports, that it was the defender who was seeking to change the name of the children.

The pursuer secondly referred to …show more content…

Thereby, section 2(2) of the 1995 Act clearly stipulates that one party can act unilaterally in the exercise of parental rights without requiring the consent of the other unless there is a curtailment of this right by any decree of deed which conferred the right or regulates its exercise. However, the pursuer believed that such unilateral exercise of parental rights must be subject to the best interest of the children.

The defender, on the other hand, used Wilkinson and Norrie’s Parent and Child to support her view that the name under which a child is registered is of little real significance, that a person has the name by which they are known and that a child’s welfare is served by a child retaining the name by which he or she is known.

The sheriff’s opinion was that Wilkinson and Norrie’s statutory interpretation of section 2(4) of the 1995 Act and the subsequent approval in M v C were wrong. However, the sheriff agreed with Wilkinson and Norrie’s point of view that the English statutory background and the significance of registration is very different to the law of Scotland.

6. Referring to, but not repeating, your answers to the previous questions, describe the outcome of the case and explain how Sheriff Holligan reached his conclusion [15

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