What If We Can’t Agree About the Children?

When parents separate, one of the most difficult challenges can be deciding what arrangements to make for the children. Questions often arise about where the children will live, how much time they will spend with each parent, where they will be schooled, about their medical care, holidays, or even whether they can move abroad. Understandably, these issues can become emotional, and disagreements are common.

In Scotland, there are several ways to approach these situations. Not every case needs to go to court, and in fact, most parents manage to reach arrangements without a Sheriff becoming involved. Below we explore the main options, what each involves, and how you can prepare yourself to achieve the best outcome for your children.

Talking It Through Yourselves

This may sound obvious, but many parents are able to come to their own agreements without professional involvement.

Why it can work: You are the people who know your children best. By working things out directly, you keep full control of the decisions rather than leaving them in the hands of solicitors, mediators, or the court.
What it involves: Parents might meet to discuss arrangements, exchange ideas by email, or even use parenting apps designed to help keep communication clear. Sometimes, an informal “trial run” of an arrangement helps to see if it works for everyone before committing long-term.
Practical tip: Keep conversations focused on the children rather than past issues between you. Try to avoid using the children as messengers. Writing down what you have agreed — even if it’s just a simple note — can reduce misunderstandings later on.

Negotiation Through Solicitors

If talking directly isn’t working, or if the relationship between parents has broken down to the point where communication is difficult or even non-existent, solicitors can help.

How it works: Each parent instructs their own solicitor, who will then open negotiations. This may be done by letter, email, phone calls, or sometimes meetings between the solicitors and both parents.
Why it can help: Having a solicitor speak on your behalf can remove some of the emotion from the process. Solicitors are also able to give you realistic advice about what might happen if matters did go to court, which can help both parents see the bigger picture.
Possible outcomes: Negotiations often result in a written agreement, which can either be an informal understanding or a legally binding document such as a Minute of Agreement (a formal contract registered with the court).
Practical tip: Be clear with your solicitor about your priorities. For example, if your main concern is that your child has a consistent routine, let your solicitor know that this matters more to you than the precise number of overnight stays. This helps keep negotiations focused and productive.

Mediation

Mediation is one of the most widely used methods of resolving disputes about children outside of court.

What happens in mediation: Both parents meet with a trained mediator who is neutral — they are not there to take sides or make decisions – but to help guide a constructive conversation. Sessions usually take place face to face, but online mediation is becoming more common.
Why it is effective: Mediation provides a safe space where parents can air their concerns, be heard, and work towards solutions. Because the agreement is reached jointly, parents are often more likely to stick to it. It can also be less expensive and quicker than legal proceedings.
Children’s involvement: Some mediators offer “child-inclusive mediation,” where older children can speak directly to the mediator about their views. These are then fed back to the parents in a sensitive way.
Practical tip: Go into mediation with an open mind. It isn’t about proving who is right or wrong — it’s about finding arrangements that work in practice and meet your child’s needs.

Collaborative Family Law

This is less commonly used in Scotland but can be a very constructive approach where both parents are willing.

What it involves: Each parent instructs a specially trained collaborative lawyer. All four participants (the two parents and their solicitors) meet in a series of structured sessions. Everyone signs a participation agreement committing to resolve matters without going to court.
Why it helps: The process encourages open and honest communication in a safe setting. Because the focus is on problem-solving rather than confrontation, it can help parents maintain a better long-term relationship — which is particularly important if children are young.
Practical tip: Be prepared to compromise. Collaborative law works best when both parents are willing to give ground to achieve an overall solution that benefits the children.

When Court Becomes Necessary

Despite best efforts, sometimes parents simply cannot agree, and court action becomes unavoidable.

What the court can do: Under Section 11 of the Children (Scotland) Act 1995, the court can make decisions about:
- Where a child should live (residence orders)
- How often a child should see the other parent (contact orders)
- Specific issues such as schooling, medical treatment, or taking a child abroad
How decisions are made: The court’s paramount consideration is always the welfare or best interests of the child. Where a child is younger than 12 years of age, the Sheriff will consider whether the child is capable or sufficiently mature enough of expressing a view and understanding the impact of that, and if so, those views may be taken into account. Where a child is 12 their views must be taken into account. Although a child’s view will be considered, it will not be determinative of the outcome and that will be down to the Sheriff to make the decision that he considers is best for the child. Views might be taken using child friendly forms, interview with a child welfare reporter or even the Sheriff himself, or discussions with a court-appointed professional.
The process: Cases usually start with a Child Welfare Hearing, where the court tries to identify the main issues and encourage agreement if possible. If matters cannot be resolved, the case can proceed to a full proof (like a civil trial) where evidence is heard.
Practical tip: Court should be a last resort. It can be stressful, costly, and time-consuming, and the final decision may not please either parent. If you do go down this route, be prepared to show the court why your proposal is in your child’s best interests, rather than focusing on criticising the other parent.

Keeping the Focus on Your Child

No matter which route you take, it helps to keep a few guiding principles in mind:

Children’s welfare comes first: The law in Scotland is clear that the child’s best interests are paramount. This means focusing less on parental rights and more on what arrangements will meet the child’s needs.
Routine and stability matter: Children cope better when they know what to expect. Consistent routines across both households can help reduce stress and anxiety.
Good communication reduces conflict: Even if you don’t get along with your former partner, finding ways to communicate calmly and respectfully about the children can make life easier for everyone. Some parents use written diaries, emails, or parenting apps to keep discussions clear and factual.

Final Thoughts

Disagreements about children can feel overwhelming, but there are many routes to finding a solution. Most families manage to agree arrangements through direct discussion, solicitor-led negotiation, or mediation. Court is there as a safeguard, but it is usually best kept as a last resort.

If you’re struggling to reach agreement, speaking to a family law solicitor can help you understand your options, guide you through the process, and keep your child’s welfare at the heart of everything.

If you have issues concerning arrangements for your child or you simply wish more information, then please contact our experienced Family Law solicitors on 01259 723 201 or contact help@randa-fa.co.uk and we would be delighted to assist.