Child Arrangements after Separation – Scotland

Parents have equal rights and responsibilities for their children, as defined in section 1 of the Children Act (Scotland) 1995:

Parental Responsibilities

To safeguard and promote the child’s health, development and welfare
To provide, in a manner appropriate to the stage of development of the child, direction and guidance
If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis
To act as the child’s legal representative.
Parental Rights

To have the child living with you or otherwise to regulate the child’s residence
To control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing
If the child is not living with you, to maintain personal relations and direct contact with the child on a regular basis
To act as the child’s legal representative.
Who has Parental Responsibilities and Rights?

A biological mother will automatically have PRR, regardless of marital status.
A father automatically obtains PRRs in two situations –
1 – Where he was/is married to the child’s mother at the date of conception or any time thereafter
2 – Where the father has not married the child’s mother he will automatically obtain PRRs if he is registered as the child’s father. This rule only applies on or after 4th May 2006, which is when the Family Law (Scotland) 2006 came into force.
Unmarried fathers registered prior to this date do not obtain automatic PRRs.  However, PRRs can be obtained either by way of a formal agreement with the mother or by making an application to the sheriff court or Court of Session under s 11 of the Children (Scotland) Act 1995. I have recently blogged about the continuing disadvantage of unmarried fathers
Agreeing Arrangements for Children                                                                   

It is recommended that separating/divorcing couples try very hard to reach an amicable agreement as to the residency and contact arrangements for the children. A useful tool is the Scottish Government’s Parenting Agreement, which can be downloaded from the Scottish Government’s website

If you are having difficulty reaching agreement then, before rushing to the lawyers, it is well worth trying to use the available counselling or mediation services such as those provided by Relationships Scotland.

If you cannot agree on the arrangements the matter can be settled by the courts. Any application for an order relating to parental responsibilities and rights must be made under section 11 of the Children Act (Scotland) 1995.

If there is a dispute in respect of children and the action is being defended in the sheriff court, the next step in proceedings is a Child Welfare Hearing. The sheriff may also order such a hearing in other instances where they consider it appropriate.
This is intended to bring about the quick resolution of disputes about children, proving that this can be done in a manner consistent with the child’s welfare. All parties are required to attend the hearing personally and are under a duty to provide the sheriff with as much information as possible so that he or she can take whatever steps necessary to deal with the matter.
HEARINGS

Option Hearing –

An Options Hearings is purely procedural and the sheriff has no power to make an order. Instead he/she is trying to make an informed decision as to what should be the next step in the court procedure. The Options Hearing is intended to give parties a chance to meet before the sheriff in order to ascertain if agreement can be reached without proceeding to a CWH or, if this is not possible, to focus the precise disagreement between parties.

Child Welfare Hearing

A Child Welfare Hearing is a fairly informal affair, intended to bring about the quick resolution of contact disputes, aiming to resolve the problem(s) and bring about agreement, if at all possible. A child welfare hearing is fairly informal and usually held in private, with only the parties and their legal representatives and the Sheriff usually being present. . The child’s welfare will be the court’s paramount consideration.

The sheriff will ascertain from parties, or their solicitors if they are to be represented, what matters are in dispute in relation to the child. Parties provide the Sheriff with information relating to the issues in dispute.
Solicitors (or the party litigant) put each side’s case to the Sheriff, then after discussion, if an agreement can’t be reached, the sheriff will set out a timetable how to proceed. The sheriff may make interim orders, or refers both parties to a family mediator, like Relationships Scotland.

If parties are unable to reach agreement, disputes may have to be decided after often lengthy and expensive ‘proof hearings’ where the parties give spoken evidence and are subject to cross examination, and where witnesses may also be called to the hearing to provide testimony, or supply a written affidavit.

Under Section 11(7) of the Children Act (Scotland) 1995, the court shall, so far as it is practical, take into account a child’s age and maturity, and the court will give the child the opportunity to express his views and thoughts, should he wish to, and give due consideration and regard to those views the child expresses.
A child is also entitled to his own legal representation if necessary. The action is required to be intimated to the child, and his views must be taken into account by the court. Usually, a child aged 12 years or more will be considered by the Court to be considered of sufficient age and maturity however, it’s possible for children younger than 12 years to present their views to the Court, if they have a formed view.

A child’s views may sought and represented in a number of different ways: the Sheriff may interview the child in Chambers privately, without parents or a third party being present, or the child may be invited to attend the hearing, or a bar reporter may be appointed by the Court in order to obtain the child’s views.

The most important factor in any decision by the court regarding children is the consideration of the child’s/children’s welfare – this is paramount at all times. (See section 11(7) of the Children Act (Scotland) 1995). The Court would also consider those involved in the application, ie the mother and father. While the mother, by de-facto, has a relationship with the child, the onus is on the father to prove his reasoning for either applying for or for defending the application, so motive would be a consideration. The courts would consider if those involved, ie the parents are able, or will be able, to co-operate with sufficient willingness.

The Courts may also consider the arrangements for the non-resident parent to see their child/children, if the resident parent doesn’t agree with the contact arrangements; the Court may make a Contact Order. Other factors are: the domestic living arrangements of the child currently in place, the person/parent best able to meet the daily needs of the child/children, the working arrangements of the person applying for the order, and whose arrangements are most conducive to the primary needs and care of the child, and in the case of very young children, the Court makes the assumption that the children are better left in the care of the mother – however each case is based on its own merits, and the suitability of all parties is considered.

Contact orders

Where courts are required to and do make decisions, parents must stick by them. These decisions are enforceable. If a parent fails to obey the terms of a Court Order he or she could be held to be in contempt of court and liable for punishment for that contempt.

Court decisions on children recognise the possible need for change. Where a parent applies to vary previous decisions, courts normally require that the parent should demonstrate that the change in circumstances was important (or ‘material’). The person seeking change would have to satisfy the court that the best interests of the child would be served by altering what had previously been decided. Although ‘ Parental Agreements’ may be new to the courts, they would almost certainly approach them in the same way. Any change would have to be in the best interests of the child.

 

(c) Ruth Langford