Richard and Johanna have been in a relationship for eight years, but have never married. They have two children, Eilidh aged 6 years and Jack aged 6 months. They live in social housing on the outskirts of Glasgow. Johanna worked part-time to help with the finances after Richard was injured at work. Tragically Johanna was killed by a hit and run driver, leaving Richard to cope on his own bringing up the children. Within this case study I will look at the various legislations that are relevant to this family, and the impact they have on the family's rights and responsibilities.
I will also look at the responsibility and duties of the social work departments and the duties they have in relation to children and families. Civil and Criminal law Legislation falls heavily upon this family, and law plays a big part in their daily lives. In Richard's case after suffering a leg injury at work he could or may pursue criminal damages through the civil courts with him being the applicant, bringing the case against the defender. This case could also arise in the criminal courts if the defender is being sued for damages for the injury caused.
In this case the procurator fiscal brings the case to the district court and must have sufficient evidence to prove the case beyond reasonable doubt; the court must be satisfied that the accused is guilty. A civil case must have sufficient evidence to prove a case on balance of probabilities; the court must be more than 50% satisfied. "Criminal law is concerned with crime and how the courts deal with it. Other types of law are generally described as civil law" (Law Module 1&2, RGU 2007).
Two of the main differences between civil and criminal law are the different court structures and the different outcomes, however they are separate court systems but some courts will appear in both systems, most important to add is that the house of lords is the final court within the civil court system for most of the cases, but any civil case begins an the lowest of the court systems and that is the sheriff court where sheriff's deal with small claims of payments of debts up to 750, summary cause for payments of debts over i?? 750 and ordinary cause for payments of debts over 1,500 and also divorce, and for cases relating to parental responsibilities and rights.
The high court is the final system in criminal law, and this only hears appeals. There are 2 types of procedure in this law, summary which deals with lesser offences and solemn, which deals with serious offences. Social Work Practice Social workers and social work departments are governed by laws which are passed through Acts of Parliament.
Social workers have a duty of care to children and families most at need, and they have a responsibility to ensure that care is met through theses legislations. The law gives social work powers to help family life, these powers and duties are embedded within the framework of The Children (Scotland) Act 1995 and the Social Work (Scotland) Act 1968. It is important in these laws to identify whether social workers have power or if it is a duty. "The word shall in legislation indicates a duty: it must be done.
The word may in legislation indicates a power: it can but need not be done" (Law Module 1&2, RGU 2007). The Children (Scotland) Act 1995 section 22, goes on to say "Local authorities have a duty to safeguard and promote the welfare of children who are in need by providing a range and level of services appropriate to their needs" (The Scottish Office). Therefore Social Workers must be aware of the implications of their actions, their recommendations and interventions.
According to Mackay cited in Social Work and the Law in Scotland, (2003), Pg, 107 "This must entail attempts to understand properly the circumstances and social factors having a bearing upon all service users, irrespective of sex, ethnicity, religion or disability". The Children (Scotland) Act 1995 was a major piece of legislation underpinning many areas of the law concerning children. The Children (Scotland) Act 1995 saw a change in direction especially in the terminology used. This was a move towards a more child centered approach, without losing the purpose that parents still have rights towards their children.
What did change was more emphasis on responsibility. The Children (Scotland) Act 1995 conforms to the United Nations Convention on the Rights of the Child implementing many of its provision. Lord Kilbrandon changed the face of Social Work following his report in 1964 on Children and Young People. Central to his report was to see children who were in trouble removed from the courts who had previously been dealing with them, and to replace it with a welfare system which took the form of the Children's Hearing System.
Social workers learn from law on why it is done or even why it is done. The knowledge is there and using this knowledge, includes: "Using law and guidance that endorses anti – discriminatory practice" (Adam, D. Dominelli, L. and Payne, M. 2002, P. 72) With the loss of his Partner, Richard wanted to assure himself about his children's future and was seeking assistance form social services and consultation with a solicitor.
Social services would be able to help him identify areas where Richard can look for help, such as child minding and additional financial support, as well as legal rights. A solicitor can look at things such as compensation for injury at work and can also look at compensation through the courts for the death of his wife. Most importantly if Richard or Johanna had no will's, then Richard can further safeguard his children's future by having a will properly drawn up by a solicitor, where he would qualify for legal aid and not incur any added financial costs.