Disputes concerning children can be among the most difficult and stressful - for parents as well as for children. Our team of family lawyers has a wealth of experience in this area of law. Below we have addressed some of the issues but we do strongly recommend you speak to a solicitor as early as possible.
What are the basic principles?
Attitudes both in society and in the courts have changed significantly in recent years. The law concerning children is governed in Scotland by the Children (Scotland) Act 1995, which stresses the responsibilities parents have, as well as their rights. It discourages the courts from making formal orders unless they are absolutely necessary. It encourages parents to remain as involved as possible with their children after separation. Instead of using the words “custody” and “access” the Court orders that can be requested are for a “residence order” to have a child living with a parent or a “contact order” to have the child spend some time with the parent asking for the order.
Going to court is stressful for everyone. It is better for children if parents can agree things between themselves rather than have to go to court. The agreement can be informal but may also be put in writing (a separation agreement).
However, there are situations when it is important to ask the Court for an order, for example if there is a danger that the other parent might abduct the children or the children might be taken out of the country.
The law does not consider that either the mother or the father automatically has a better claim. The decision is based on what is in the best interests of the child. That will depend on who is best able to provide for the practical and emotional needs of the child. In general, courts are keen to see children having contact with both their parents throughout their childhood, unless there is a good reason why not.
Do the views of child/ren have to be taken into account?
The views of any child involved are very important. A child of twelve or over is assumed to be old enough to say what their views are. With younger children it depends on their maturity. Parents are normally supposed to take into account the views of the other parent and children (where appropriate) in any major decision concerning a child. Sometimes children may need separate legal advice – see our factsheet on “Legal Representation for Children and Young People”
Who has or can acquire parental rights and responsibilities?
All mothers automatically have parental rights and responsibilities for their children. Fathers married to the mother of the child also have automatic parental rights and responsibilities. Unmarried fathers only have automatic parental rights and responsibilities if the child was born after 4th May 2006 and the father’s name is on the birth certificate. Otherwise they need a court order or a formal agreement with the mother to share in parental rights and responsibilities.
Can I appoint a guardian for my child/ren?
It is possible to appoint someone to take over your parental rights and responsibilities if both you and the other parent of your child die. If you want any guidance about how to do that contact one of our family lawyers. If you need to make arrangements for your child/ren or require guidance on any of the above, contact one of our family lawyers.
Child support - who should provide it?
Both married and unmarried parents (and in certain circumstances people who have lived in family with and acted like parents to children) have an obligation to contribute financially towards the children’s upbringing. The parent who does not have the children living with them most of the time should provide financial support for the children. All parents with care of their children, regardless of whether or not they are receiving state benefits, can either enter into a voluntary agreement with the other parent about child support, or can apply to the Child Support Agency (CSA) for an assessment of how much maintenance the other parent should pay.
Financial support for young people - who is entitled?
Young people aged sixteen and over who are in appropriate full time education or training are entitled to financial support from both parents up to and including the age of twenty four. Between the ages of sixteen and eighteen financial support for a young person can be paid from one parent to the other or from the parent to the young person direct. Where the support is for a young person of eighteen and over the support is paid to the young person. If you need to make arrangements for your child/ren or require guidance on any of the above, contact one of our family lawyers.
