Child Custody and Parental Rights in Scotland

Navigating the complex landscape of child custody and parental rights can be challenging for parents in Scotland. This guide aims to provide a comprehensive overview of the legal framework, key considerations, and practical advice to help parents understand their rights and responsibilities.

Children (Scotland) Act 1995

The cornerstone of child custody and parental rights in Scotland is the Children (Scotland) Act 1995. The Act has at its focus the welfare of the child, which is the paramount consideration of the court in determining any legal decision affecting them. Key principles include:

Welfare Principle:  The child’s welfare is the primary consideration.

No Order Principle:  Courts should not make any order unless it is better for the child than making no order at all.

Child’s Views:  Children who are capable of forming their own views should be given the opportunity to express them.

Parental Responsibilities and Rights (PRR’s)

Under the Children (Scotland) Act 1995, parents both owe responsibilities to, and hold corresponding rights towards, their children. These include:

• Safeguarding and promoting the child’s health, development, and welfare.
• Providing direction and guidance to the child.
• Maintaining personal relations and direct contact with the child.
• Acting as the child’s legal representative.

Both parents automatically have PRR’s if they are married to each other at the time of the child’s birth or if they subsequently marry. Unmarried fathers obtain PRR’s if they are registered on the child’s birth certificate (for births registered after 4 May 2006) or if awarded by way of a court order.

Child Custody Arrangements

Residence Orders

A residence order determines where a child will live. While it is common for children to reside primarily with one parent, increasingly, shared residence arrangements are becoming more prevalent. Shared residence does not necessarily mean an equal split of time, but rather that the child spends significant periods with each parent.

Contact Orders

A contact order regulates the contact between a child and the parent with whom they do not primarily reside. Contact can be direct (face-to-face) or indirect (letters, telephone, video calls). The courts encourage regular and meaningful contact with both parents, provided it is in the child’s best interests.

Specific Issue Orders

These orders resolve specific disputes between parents about the child’s upbringing, such as education, religious upbringing, or medical treatment.

The Court Process

Making an Application

If parents cannot agree on child custody arrangements, they may apply to the court for an order. The process involves:

Filing an Initial Writ:

The applicant must submit an Initial Writ to the Sheriff Court.

Child Welfare Hearing:

At an early stage in proceedings, the court will hold a Child Welfare Hearing to discuss the case and try to reach an agreement. This hearing is less formal and focuses on the child’s welfare in the meantime, rather than any perceived “right’s or wrong’s” of the parties’ respective positions.

Proof Hearing:

If no agreement is reached, a Proof (Evidential) Hearing may be scheduled where evidence is led before the Court, and witnesses can be called.

Factors Considered by the Court

The court considers various factors when making a decision, including:

• The child’s age and maturity.
• The child’s views, if they are old enough to express them.
• The relationship between the child and each parent.
• The ability of each parent to meet the child’s needs.
• Any history of abuse or neglect.

Alternative Dispute Resolution

Mediation

Mediation is a voluntary process where an independent mediator helps parents reach an agreement. It is often cheaper and less adversarial than court proceedings and can often lead to more amicable solutions.

Collaborative Law

In the collaborative law process, each parent has their own solicitor, and all parties commit to resolving issues without going to court. This approach encourages cooperation and constructive dialogue.

Practical Advice for Parents

Communicating with Your Co-parent

Effective communication is crucial for successful co-parenting. Keep discussions child-focused, remain respectful, and be willing to compromise.

Prioritising the Child’s Needs

Always consider what is best for the child, rather than what might be convenient or preferable for you as a parent. Stability and consistency are key and will form an important focus of any court action if required.

Seeking Legal Advice

Consulting with a solicitor who specialises in family law can provide clarity and guidance tailored to your specific circumstances. They can assist in understanding your rights and the likely outcomes based on the details of your case.

Conclusion

Child custody and parental rights in Scotland are governed by principles that prioritise the welfare and best interests of the child. Understanding the legal framework, court process, and alternative dispute resolution options can empower parents to make informed decisions and avoid pitfalls which might lead to disagreements, the breakdown of arrangements and court actions. By focusing on the child’s needs and maintaining open communication, parents can work towards arrangements that support their child’s well-being and development.

For tailored advice and assistance, parents are encouraged to seek the guidance of a qualified family law solicitor.

If you have an issue or 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.