A Critical Evaluation of the Rights, Status and Capacity of Distinct Categories of Individuals in Underdeveloped and Emerging Areas of Law Lesley-Anne Barnes Macfarlane LLB (Hons), Dip LP, PGCE, LLM A thesis submitted in partial fulfilment of the requirements of Edinburgh Napier University, for the award of Doctor of Philosophy May 2014 1 Acknowledgements I would like to express my sincere gratitude to my supervisors, Dr Richard Whitecross and Dr Sandra Watson, for giving me their time, guidance and assistance in the writing up of my PhD Critical Appraisal of published works. I am indebted to my parents, Irene and Dennis, for a lifetime of love and support. Many thanks are also due to my family and friends for their ongoing care and companionship. In particular, I am very grateful to Professors Elaine E Sutherland and John P Grant for reading through and commenting on my section on Traditional Legal Research Methods. My deepest thanks are owed to my husband, Ross, who never fails in his love, encouragement and practical kindness. I confirm that the published work submitted has not been submitted for another award. ………………………………………… Lesley-Anne Barnes Macfarlane Citations and references have been drafted with reference to the University’s Research Degree Reference Guide 2 CONTENTS VOLUME I Abstract: PhD by Published Works Page 8 List of Evidence in Support of Thesis Page 9 Thesis Introduction Page 10 (I) An Era of Change in the Individual’s Rights, Status and Capacity in Scots Law (II) Conceptual Framework of Critical Analysis: Rights, Status and Capacity (a) Rights: ◦ Defining rights ◦ My publications: the rights of distinct categories of individual in Scots Law (b) Status: ◦ Defining status ◦ My publications: status (c) Capacity: ◦ Determinations of capacity ◦ My publications: capacity generally ◦ Child capacity: instructing a solicitor and forming a view ◦ Capacity and younger children ◦ Child Capacity and the alienated/manipulated child ◦ Child capacity and consent to medical treatment ◦ Child “capacity to neglect”: Delict ◦ Capacity and disempowered adults Conceptual Framework: Conclusions (III) My Research Method: traditional legal research (benefits and disadvantages) ◦ Traditional Legal Research Methods ◦ Analysis: benefits and disadvantages ◦ Traditional legal research: my publications (IV) Reflective Commentary of my Overarching Research Theme and Research Strands 3 Part 1: Critical Appraisal of Cited Published Works: Page 49 Chapter 1: Publications 1, 2 and 3 Page 50 1.1. General Introduction to Publications 1, 2 and 3 1.2. Rationale and Independence of Publications 1.3. Publications 1, 2 and 3 - Contextualising the Premise and Aim(s) (i) Families and Family Law in Contemporary Scotland (ii) Linking my contribution about children in Family proceedings to broader socio-legal literature and debates ◦ Socio-legal literature about realising children’s rights ◦ Socio-legal literature about autonomy and participation ◦ Socio-legal literature about children’s versus adults’ rights (iii) Article 12 and Family Law: the framework governing the participation of the child (iv) Expressing a view in the context of Scottish Family Law proceedings 1.4. Observations on Approach Adopted in Publications: (i) General Approach of Publications 1 and 2 (ii) General Approach of Publication 3 1.5. Reflections on Publication Research Outcomes: ◦ The Manipulated Child and the ‘Anti-Contact Movement’: discussion leading on from Publications 1 and 3 ◦ Counter-arguments to the ideas of the ‘Anti-Contact Movement’ and the ‘Manipulated child’ in academic literature ◦ The Anti-Contact Movement/Manipulated Child: Rights, Status and Capacity (i) Alienated/Manipulated Children: the Anti-Contact Movement (ii) Trend 1 – Best interests trump child’s views: strive to fix what’s broken (iii) Trend 2 – Accept the child’s apparent views to reduce ongoing conflict: the contact parent loses out (iv) Contemporary management of children’s views in intractable disputes: 2008 to date (v) All About Eve (or Adam): a third emerging Trend in intractable family proceedings? 1.6. Concluding Comments Conceptual Framework: Rights, Status and Capacity - Contribution of Publications 1, 2 and 3 4 Chapter 2: Publications 4, 5 and 6 Page 101 2.1. General Introduction to Publications 4, 5 and 6 2.2. Rationale and Independence of Publications 2.3. Publications 4, 5 and 6 - Contextualising the Premise and Aim(s) 2.4. Observations on Approach Adopted in Publications: (i) General Approach of Publication 4 (ii) General Approach of Publication 5 and 6 2.5. Reflections on Publication Research Outcomes: (i) Education Law: all talk and no action? (ii) Are teachers quasi-parenting our children – or not? (iii) Children and Delict: it’s not about the child’s best interests (iv) Children and Delict: might it be about best interests after all? 2.6. Concluding Comments Conceptual Framework: Rights, Status and Capacity - Contribution of Publications 4, 5 and 6 Chapter 3: Publication 7 Page 123 3.1. General Introduction to Publication 7 3.2. Rationale and Independence of Publication 7 3.3. Publication 7 - Contextualising the Premise and Aim(s) 3.4. Observations on Approach Adopted in Publication 7 3.5. Reflections on Publication 7 Research Outcomes: (i) The Influence of Medical Progress on the Law (ii) The Effect of Social Developments on the Law (a) Young Transsexuals: the schoolboy in a dress? (b) Funding Disputes: who pays for the “Sex Change”? (iii) The Impact of the Gender Recognition Act 2004: Subsequent Law (a) Gender Specific Offences (b) Marriage (c) Individuals without a remedy in the 2004 Act: the young (d) Sportspersons 5 3.6. Concluding Comments Conceptual Framework: Rights, Status and Capacity - Contribution of Publication 7 Chapter 4: Publication 8 Page 149 4.1. General Introduction to Publication 8 4.2. Rationale and Independence of Publication of Publication 8 4.3. Publication 8 - Contextualising the Premise and Aim(s) 4.4. Observations on Approach Adopted in Publication 8: (i) Approach and Structure of Publication 8 (ii) Questions that Might Have Been Posed in Publication 8: (a) Which Methods of Dispute Resolution? (b) Who Raises Proceedings – and How? (c) “Best Interests” or “Capacity”? (iii) Lessons learned 4.5. Reflections on Publication 8 Research Outcomes: (i) Consent to treatment (those below the age of 16 years) - Re Brodie - Re Jamie (ii) Recognition of the “young transsexual” 4.6. Concluding Comments Conceptual Framework: Rights, Status and Capacity - Contribution of Publication 8 Chapter 5: Overall Contribution Page 170 5.1. Aim of Thesis 5.2. Bringing Together my Contribution: Rights, Status and Capacity of Distinct Categories of Individuals in Underdeveloped and Emerging Areas of Law Rights, Status and Capacity: the Young: ◦ Children in the Family: Private Family Law Proceedings – Publications 1, 2 and 3 ◦ Children in the Wider Community: Education Law; Delict – Publications 4, 5 and 6 ◦ Children and Complex Medical Treatment: Transsexuality – Publication 8 6 Rights, Status and Capacity: Disadvantaged Adults: ◦ Underdeveloped and Emerging Areas of Law: Transsexuals – Publication 7 5.3. The Overall Contribution of my Published Work Publications 1, 2 and 3: Overall Contribution Publications 4, 5 and 6: Overall Contribution Publication 7: Overall Contribution Publication 8: Overall Contribution 5.4. Concluding Comments: Limitations of my Published Work and Future Research Appendix to Part 1: Transsexuality Timeline – Developments in Medicine, Society and Law Page 184 References: Case List, International Conventions, Statute List and Bibliography Page 187 VOLUME II Part 2: Body of Evidence in support of Thesis Page 233 List of Publications Included Page 234 Copies of each Publication cited in the Application for Registration 7 Abstract: PhD By Published Works The aim of this thesis is to demonstrate how my research promotes knowledge exchange about my overarching research theme: the rights, status and capacity of distinct categories of individuals in underdeveloped and emerging areas of law. These categories include disempowered individuals (namely young people and transsexuals) and persons of reduced or questionable legal capacity (to date, children and disabled people). The thesis is in two parts. Part 1 (Volume I) is a reflective commentary and Part 2 (Volume II) comprises the published work submitted. In the reflective commentary, my published work is critically appraised and placed within a wider legal and thematic framework. My overarching research theme is summarised and evaluated with reference to the legal premises, methodology and the research outcomes of my published work. In particular, I present a critical reflection of eight of my publications, each of which is concerned with the impact of the law, and issues surrounding legal reform, upon the young and certain disempowered adults. I demonstrate that this body of work forms a contribution to interdisciplinary sharing of novel and meaningful research outputs both (i) within the academic arena and (ii) throughout the wider professional community. I argue that my published work is original, because it is concerned with important, but largely neglected, areas of Scottish (and often wider UK) law. Furthermore, I argue that my publications are independent and significant in that they provide a distinct and critical evaluation of existing law and seek to promote the growth of individual status and capacity. This, in turn, often generates greater provision for individual rights, and the imposition in law