As a parent, whether you are married, single or living with your partner, you need to feel confident that your children’s needs will be protected.
Disputes about children are not uncommon when a relationship breaks down although most couples do manage to make satisfactory arrangements which work very well without assistance from anyone. This is the ideal situation and is what happens in the great majority of cases. Indeed, the Children (Scotland) Act
1995 specifically provides that the Court should not intervene by making any orders in respect of children unless this is absolutely necessary. The law provides that the Court should not make any orders with respect to the child, unless it considers that doing so would be better for the child than making no order at all. This is often referred to as the “minimum intervention principle”.Until the Children (Scotland) Act 1995 came into force, the words “custody” and “access” were used to apply to the orders a Court could impose. Most people will have heard these words, whether through personal experience or in the media. The new legislation has changed not just the rules but the terminology. The term “custody” is no longer relevant. If the Court wishes to regulate with whom the child is to live, it can grant a “Residence Order”. The parent who has a right to see the children but not have them live with them (“the absentee parent”) is not granted “access” any more. The new legislation provides for that parent to be allowed “contact” and a “Contact Order” may be granted to regulate the periods of contact.
Sadly, agreement is not always possible and the matter may become contentious. Sometimes, the reasons for this are misguided and one (or both) parties are using the children to get at one another. On other occasions there are very real causes for concern as to the well-being of the child. Court action then becomes unavoidable if the parents cannot come to an agreement. It is fair to say that the Courts usually regard imposing an order (in relation to the care arrangements or contact in respect of children) as a last resort and the Courts will try to attempt conciliation if at all possible.
In many Courts it is a matter of routine for the parties to meet with a Mediator on a confidential basis to see if agreement could be reached before any Court action goes forward. If questions of residence and/or contact have to be decided by a Court then there is one over-riding principal which comes before all others: -
• The Court will make its decision in the light of what it considers to be in the best interests of the child.
There are other factors, of course. For instance, if a teenage child is resolutely opposed to contact with one parent, then a Court is very unlikely to make an order which has little chance of being obeyed. With younger children, the wishes of the child are often taken into account depending on the age of the child but they are not decisive in themselves. Generally speaking a Court will consider contact with both parents to be in the interests of the child and it is very unusual for say, an absentee parent, to be denied contact with the child. There would have to be extremely unusual circumstances for such an order to be made.
In practice, although the test of what is in the child’s best interests seems simple enough, if one parent seeks to prevent the other having contact at all then legal advice is almost always necessary.
Another point which is often raised is the fact that there is no connection between payment of maintenance and contact. Contact is decided on the basis of what is in the best interests of the child and that is not necessarily dependent upon whether the absent parent pays maintenance. Many people regard this as unfair but that is the law as it presently stands. Almost all disputed cases involving contact or residence in relation to children are difficult and there is very often no one right or wrong answer. For that reason it is very important to take professional advice in this situation.
Even when you are in a happy, stable relationship, you should consider seeking advice in relation to:-
• Appointing a Guardian for your children.
You should consider making a Will or a deed appointing a Guardian to look after your children in the event of your death.
• Parental Responsibilities.
We can help you obtain a Court Order particularly if you are living with but not married to your partner (or are an unmarried parent living alone. We can advise about the legal complications of parental responsibility for both parents.
If you are separating from your spouse or partner, arrangements for your children will be one of your most important concerns. If you are able to decide and agree on the arrangements for the children following separation, then you may not need to have any Court Orders. However, if for any reason you cannot agree about arrangements for the children, you may need to seek a Court Order to resolve the issue.
The Court’s most important consideration when deciding any issue is the child!
SOME COMMON ORDERS THE COURT CAN MAKE
• Residence Order – who the child is to live with.
• Contact Order – allowing the child to have contact with someone. “Contact” may be anything from the child staying overnight to telephone calls, cards or letters.
• Parental Responsibilities Order – an order conferring all the responsibilities and rights of a child on a person, usually an unmarried father and sometimes a Local Authority in respect of a child in its care.
• Specific Issue Order – an order regulating any specific question in connection with parental responsibilities or rights, guardianship or the administration of a child’s property. Allows any interested parties, including the child, to call on the Court’s assistance to try and resolve any existing or prospective disputes.
• Interdict – an order allowing the Court to order a person not to do a particular thing, or, if doing it, to stop. For instance, this may be used to order parents not to consent to a particular medical procedure, not to deal with the child’s property in a particular way, not to take the child outwith the jurisdiction of the Sheriff Court, not to take the child to a dangerous part of the world on holiday, etc.
We are sometimes asked by Grandparents what rights they have to see their grandchildren.
Grandparents do not automatically have any legal rights but with the permission of the Court in suitable cases they can make application to the Court for a Contact Order or even a Residence Order.
CHILDREN’S HEARING SYSTEM
Scotland has a unique children’s hearing system relating to the treatment of children who have committed offences. The basis of the system is that a child who has committed an offence is just as much in need of protection, guidance, treatment and control as is the child against whom an offence has been committed.
It is recognised that when a child commits an offence a caring response is often more appropriate than the imposition of a penalty. At all times the children’s hearing system must have regard to the welfare of the child which is the paramount consideration.
In each of the various local government areas in Scotland there is a Children’s Panel. The Panel is made up of members of the public who have been appointed to the Panel by the Secretary of State. The child is the central figure at a children’s hearing although the child does not require to be present in all cases.
Cases are referred to the children’s hearing system by the Children’s Reporter. The Reporter draws up the grounds upon which the child is to be referred to the Children’s Panel. These grounds can include situations in which is it alleged that the child is beyond the control of the parents, the child is likely to be impaired seriously in his or her health or development due to a lack of parental care, etc.
The child (subject to age) and the other relevant persons, eg, the parents, will be asked whether the grounds of referral to the Children’s Panel are accepted. In the event that the grounds are not accepted, either wholly or in part, the Children’s Reporter may be directed by the Panel to refer the case to the Sheriff Court for a finding that the grounds of referral do exist. In such circumstances, a hearing takes place in front of a Sheriff where evidence is taken on oath and can be challenged by cross-examination.
Legal Aid is normally available for Sheriff Court hearings of this nature.
We are able to offer guidance and assistance in each of the above areas of law as well as many other difficult situations which arise in relation to the welfare of children.