Surrogacy and the Law

As an undergraduate I studied Forensic Medicine. One of the topics we covered was the legal issues surrounding surrogacy and so it was with interest that I read a recent BBC report which pointed out that the number of registered surrogacies in the UK has risen from just 83 in 2010 to a projected figure of more than 200 this year.  Surrogacy is legal in Scotland but subject to many complexities.

A surrogate mother is a woman who carries a child by virtue of an arrangement to do so. Common scenarios might be a married couple encountering difficulties in conceiving or giving birth naturally or a family member agreeing to carry a baby for her sister who has had a hysterectomy. There are two types of surrogacy, partial and full. Partial surrogacy involves the surrogate mother’s egg being fertilized with the intended father’s sperm. In full surrogacy there is no genetic link between the surrogate mother and child.

A surrogacy agreement will be entered into between the parties wanting to be parents and the surrogate mother. The arrangement must be made before the mother begins to carry the child and is formulated with a view to handing over the child to the prospective parents after the child is born. It is illegal to advertise for a surrogate or for a surrogate to advertise her services. No money or other benefit, other than reasonable expenses, must be given or received by either party.

Legally, however, surrogacy arrangements are unenforceable. Ultimately the surrogate mother has the legal right to keep the child when it is born and if the intended parents decide they do not want the child then they can walk away even if a contract has been signed. Few could have missed the story of baby Gammy, born to a Thai surrogate. The baby had Down’s syndrome and was allegedly left behind by the Australian “commissioning couple”. There is nothing to prevent the same situation happening in Scotland.

A recent English case highlighted further difficulties. A heterosexual couple wanted a child but the female of the couple had had a hysterectomy so a friend agreed to act as the surrogate using the male’s sperm and her own egg. A baby girl was born, handed over to the couple but three months later the couple split up. The woman left the home and took the baby with her.  But the surrogate mother was legally the child’s mother and the man in the couple was legally the child’s father. The woman of the couple had no legal relationship with the child whatsoever. This would equally apply in Scotland: the woman of the couple would have no parental rights and responsibilities, with no right to have the child living with her whereas the surrogate mother would be responsible for regulating the child’s residence and be obligated to financially support the child.

Clearly legal advice is crucial to ensure the relationship between the child and its intended parents is given the correct legal standing .Parenthood can only be transferred to the intended parents through a court order. An application for a parental order must be made within the first 6 months of a child’s life. In Scotland application is made to the Court of Session or the Sheriff Court in the place the child resides. The applicants must be husband and wife, civil partners of each other or two people who are living together in “an enduring family relationship.” The child must be living with the applicants at both the time of the application and the time of the making of the order. One of the applicants must be domiciled in the UK. The court must be satisfied that the surrogate mother or anyone else who is a parent of the child but not one of the applicants freely consents to the making of the order.

Why A Power Of Attorney Is A Good Idea

Last December a new campaign was launched across Glasgow to raise awareness about the importance of having a Power of Attorney.NHS Greater Glasgow and Clyde and Glasgow City Council joined forces with Alzheimer Scotland and Scottish Care to highlight the need to “Start the Conversation” with family members about putting a Power of Attorney in place.

Every year thousands of people in Scotland lose capacity-it could be an accident, a head injury, a stroke or on-going progressive illness. Such occurrences are not age prescriptive. The only way you can plan for your future is to appoint an Attorney who can make decisions for you when you are unable to do so for yourself. Anyone over the age of 16 can make a Power of Attorney.

So what is a Power Of Attorney? It is a written legal document giving someone else authority to take actions or make decisions on your behalf. You choose who you want to act as your Attorney and what powers you want the Attorney to have. The deed can cover both financial and welfare provisions.

The financial provisions can include power to purchase and sell heritable property, power to operate bank accounts, power to claim and receive all pensions, benefits, allowances etc. There are many other powers which can be included or left out as appropriate, depending on your circumstances. Welfare powers can include power to decide where you should live, to have access to your personal information, to consent or withhold consent to medical treatment.  Again there are other powers that can be specified to meet your individual needs. The deed can be limited to cover a certain transaction or to cover only a specified period of time.

You can appoint anyone you wish to be your Attorney e g family member, friend or solicitor. Importantly you should appoint only someone you trust- whoever you feel comfortable with dealing with your affairs.

To become effective and to allow your Attorney to act on your behalf the Power of Attorney must be registered with the Office of Public Guardian which supervises all such appointments.  It is therefore possible for a Power of Attorney to be drawn up now and put aside to be registered in the future when appropriate. Further provision can be made in the Power of Attorney that it must not be registered unless a doctor certifies that you are unable to manage your own affairs.

In a different context a Power of Attorney could be used to help in everyday life. For example couples may decide to grant each other Power of Attorney if one partner spends a lot of time working overseas. Someone may grant a Power of Attorney to a trusted friend or professional to complete a transaction for example a house purchase settling when the grantee is out of the country. A student may grant a Power of Attorney in favour of their parents while they explore the world during a gap year.

One last point to note if you have not granted a Power of Attorney in advance and you do lose capacity then the courts have to appoint someone to act as your guardian. There are processes by which family members can apply to be granted these powers but it is a long and expensive process requiring a court hearing.

YES A POWER OF ATTORNEY IS A GOOD IDEA.

Small Print Hides A Multitude of Sins

I am a customer of a major Scottish bank. I logged on recently to its online service and was told that the terms and conditions had been changed and that I had to “accept” new conditions if I wanted to proceed.  I scrolled down pages of turgid text before finding “accept”. As a lawyer I thought “I should read this”: as a member of the human race I thought “I just want to see my balance, just click “accept”. Human nature prevailed.

All of us at some point will have signed up to a bank account or credit card or booked flights online and I am sure that many people do not read the small print. However, when clicking “accept” you are agreeing a contract on exactly those terms with the company. Granted it is rarely feasible to read the terms and conditions at the moment of agreeing to them and it is rarer still to have any negotiating power to change the conditions. The consumer protection industry recognizes this and there is legislation in place to ensure that even contracts which have not been drafted or negotiated between both parties must still be “fair”.

However it is precisely the power and activity of the consumer protection industry  which has brought about the prevalence of terms and conditions ,no doubt  with the laudable aim of enabling the purchaser of a product or service to know in advance what he is getting. But, in practice  providers of goods and services have seized the opportunity to include disclaimers for every kind of incompetence they are capable of perpetuating and to sneak into such agreements a host of hidden charges.

With this is mind I would urge that a level of caution be applied to small print.  In an article he wrote some years ago our Chairman described the ignoring of small print as “Voluntary Consumer Blindness” (VCB). We chose not to “see” the small print and by introducing certain unfavourable terms and conditions many companies are hoping VCB will prevail.  VCB may save  the mind -numbing boredom of analysing the terms and conditions but you may also be paving the way for a company to claim extra monies from you.

So when opening a bank account please check out the charges, make sure terms which are being offered are set out in writing , look at notice periods and check that any trivial breach does not change all the rates and charges.  When booking flights on line check costs for additional baggage, charges for losing boarding passes and any compensation due for late or cancelled flights.

If I can advise you regarding the terms and conditions of any contract you may be involved in please call Paul Neilly on 0141 552 3422 or email me on pdn@mitchells-roberton.co.uk

Can a poorly drafted lease cause trouble?

In a recently published case, Eastmoor LLP (the Landlord) against Keith Bulman (the Tenant) heard at Dumfries Sheriff Court, the Landlord asked the court to grant an order for recovery of possession of rented premises before the actual date on which the tenancy agreement was due to terminate.  Sheriff Jamieson, however, refused to grant the order sought deciding instead to dismiss the action due to a “poorly drafted” lease.

The Landlord told the Court that an AT6, being a notice that legal proceedings are going to commence, was served on the Tenant “intimating the tenancy would terminate on or before 17 February 2014.” The grounds for recovery specified in the AT6 all related to arrears of rent or persistent delays in payment of rent which grounds are detailed in 8, 11 and 12 of Schedule 5 of the Housing (Scotland) Act 1988. These grounds, unfortunately, in the actual assured tenancy agreement entered into between the Landlord and Tenant were only referred to by reference to the 1988 Act.

In Section 18(6) (b) of the Housing Scotland Act 1988 it quite clearly provides that the sheriff shall not make an order for possession of a house let on an assured tenancy unless the terms of the tenancy agreement make provision for it to be brought to an end on the ground in question.

The tenancy agreement in this case at Clause 1(g) states:

“If any of the grounds referred to in Grounds 8, 11, 12,13,14,15 or 16 of Schedule 5 of the Housing (Scotland) Act 1988 occur, the Landlord shall be entitled not only to recover from the tenant all loss or damage caused by the Tenant which they may hereby sustain and all rents due and which may become due and in addition may forthwith put an end to this lease and may commence proceedings for possession.”

The presiding Sheriff argued this clause was badly written:

  1. It mentions but does not specify what the grounds in fact are and
  2. It wrongly assigns to the Landlord the right to “forthwith” put the lease to an end if these grounds occur, but in fact the lease can only be terminated during its term on an order for possession granted by a Sheriff.

This case highlights the importance of drafting a lease very carefully to avoid the Landlord suffering consequences. With the Sheriff dismissing this case, the Landlord will now only be able to end the tenancy by giving a Notice to Quit at its term-not very satisfactory when the Tenant is already in arrears of rent.

We must emphasise that Landlords and Agents should always seek advice at an early stage in their negotiations to ensure that their leases comply with all legal requirements.

I have many years of experience drafting leases and if I can help, please contact me by email at rjl@mitchells-roberton.co.uk or by telephoning 0141 552 3422.

Clare’s Law

A scheme that gives people the right to know if their partner has a history of domestic violence will be piloted in Aberdeen and Ayrshire. It will start in late November and run for six months.

The Scottish Disclosure Scheme, also known as Clare’s Law, is named after Clare Wood, a mother of one, who was murdered five years ago by her ex-boyfriend George Appleton at her home in Salford. Unbeknown to Clare Mr Appleton  had a history of violence against women, including repeated harassment, threats and the kidnapping at knifepoint of one of his ex girlfriends.

The chosen areas and dates for the Scottish pilot  project  were announced on 18th August at the latest meeting of the multi-agency board set up to develop the scheme. This body includes representatives from Police Scotland, the Scottish Government, the Crown Office, ASSIST Advocacy Service and Scottish Women’s Aid. The areas were selected as they have a “wide and varied cross-section of the population” and include people who may benefit from the arrangement.

Police Scotland say the pilot schemes will be monitored and evaluated carefully and hopefully we will see a reduction of domestic abuse enabling the plan to be rolled out throughout Scotland next year. The scheme is already functioning in England and Wales.

Assistant Chief Constable Wayne Mawson said “I find it extremely encouraging that more and more victims of domestic abuse have the strength and confidence to report domestic abuse, however we are not complacent. I believe the introduction of the Disclosure Scheme for Domestic Abuse Scotland  will not only provide  a mechanism to share relevant information about a partner’s abusive past with their potential victims , it will give people at risk of domestic abuse the information to assist in making an informed decision on whether to continue in the relationship.”

Disclosures can be triggered by victims, families or a member of the public concerned about a person, as well as public authorities such as the police and social work. The decision to disclose will rest with a multi agency forum taking all parties’ rights and needs into account.

Justice Secretary Kenny MacAskill  said “It is only right that people in relationships  should have the opportunity to seek the facts about their partner’s background if, for example, they suspect their partner has a history of violent behaviour. Tackling domestic abuse is a top priority for the Scottish Government and we have provided record funding to tackle violence against women.”

Are You A Letting Agent Or A Private Landlord? If So This Is A Must Read For You!

On 1st August the Housing (Scotland) Act 2014 received Royal Assent.  This Act introduces a mandatory register and a “Letting Agent Code of Practice” to which all letting agents must adhere, as well as making certain changes affecting the private rented sector. The Scottish Government hopes such amendments will raise the standard of services provided by letting agents.

The size of the private rented sector in Scotland has been increasing over the past years. Traditionally this sector has provided a flexible housing option to prospective tenants like students or those relocating for employment reasons. However, following on from the financial downturn, the sector has also become a housing option for those seeking longer term accommodation with many potential first time buyers finding accessing home ownership difficult.

The profile of landlords in the private sector has also changed. Many investors bought properties during the housing boom on a “Buy to Let” basis and, more recently in light of the housing market  downturn, “reluctant landlords” unable to sell their properties have joined the sector.

Thus this recent legislation has been considered necessary to improve the condition of private sector homes and the standard of management in the sector. There are four significant changes brought about by the Act.

Firstly, a mandatory register has been brought into use. This requires that a letting agent must undergo a “fit and proper person” test before they can be registered and those who do not register may be subject to a six month’s prison term, a fine of up to £50,000 or indeed both.

Secondly, the Act introduces a “Letting Agent Code of Practice” to which all letting agents are bound. The First-Tier Tribunal (FTT) hopefully will now provide tenants and landlords with a specialist private rented sector tribunal. The Tribunal can now make a range of enforcement orders in cases where a letting agent has failed to comply with the Code of Practice. Failure to comply will be an offence and the agent may be subject to a fine and or ultimately removal from the Register.

Thirdly, some civil cases relating to the private rented sector, including repossession and non-repossession actions and House in Multiple Occupation (HMO) appeals, will now be heard by the FTT rather than the Sheriff Court. Time will tell if this switch allows cases to proceed more quickly.

Lastly, the Private Rented Housing Panel (PRHP) will continue to deal with breaches of the Repairing Standard. At the moment only tenants can bring a case to the PRHP but the 2014 Act now permits councils to make an application to the PRHP to decide whether the Repairing Standard has been maintained. The Act also amends the Repairing Standard in that all landlords now are required to fit carbon dioxide detectors and carry out electrical safety checks.

If you are a letting agent or a private landlord and need advice please contact Ross Leatham by email rjl@mitchells-roberton.co.uk or by telephone 0141 552 3422.

Please also see our article – A (Non-Comprehensive) To-Do-List For New Residential Landlords.

 

A “Taste Of The Tattoo”

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It was a lovely sunny day yesterday and I was going for a walk at lunchtime with one of my colleagues. Our office is on the corner of George Square and North Hanover Street so on stepping out we noticed that there was a crowd in the Square. We had no idea what was going on so went to see. It was a mini version of the Edinburgh Tattoo right here in Glasgow. I was brought up in Edinburgh and in the 27 years I lived there I never once went to the Tattoo so this was my first experience of the spectacle and it was great. We were treated to performances by the Trinidad and Tobago Defence Force Steel Band, Highland dancers from down under, Maori warriors, Zulu dancers, an Indian cultural troupe and massed military pipe bands and drums.  The atmosphere was festive and I took some great photos. Our office certainly does have a prime location.