Parents who separate should carefully consider the arrangements they make for their children. It is important for parents to remember that while they may be preoccupied with their own problems, they continue to be the most important people in their children’s lives. While parents may be devastated or relieved by the permanent ending of the relationship, children can also be frightened or confused by the break-up of the family.

It is best for the children if parents can reach agreement between themselves on arrangements for their children. In many cases the children will live mainly with one parent and spend periods with the other parent on a regular basis. Sometimes parents will decide to share the care of their children on an equal basis. The law recognises that parents are best placed to make these arrangements and the courts will only make orders as a last resort.

Who has parental rights and responsibilities?

Parental rights and responsibilities, which are set out in the Children (Scotland) Act 1995, are explained below. Married couples have equal parental rights and responsibilities. Under the Family Law (Scotland) Act 2006, which came into force on 4 May 2006, unmarried fathers who jointly register the birth of a child with the child’s mother, share parental rights and responsibilities with the mother. This puts unmarried fathers who jointly register the birth in the same position as married fathers. This is not retrospective, which means it only applies to births registered after 4 May 2006.

Who is a child?

A child is a person under 16 years of age, generally speaking, but in certain circumstances under 18 years.

What are parental responsibilities and rights?

Parental responsibilities are what parents are expected to do. Parental rights are what parents are allowed to do. Rights and responsibilities continue until the child reaches 16 years, except for the right to provide guidance, which continues until the child reaches 18.

Parental responsibilities

As a parent the law says you have the following responsibilities in law:

(1) To safeguard and promote the child’s health, development and welfare. Parents are expected to look after their children, to help them.

(2) To provide direction and guidance in a manner appropriate to the stage of development of the child. Parents are expected to say how a child should be brought up until they are 16. Between 16 and 18 parents are expected to advise a child, to enable them to make good decisions.

(3) If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis. Parents are expected to stay in touch and be involved with their children if they are not living with them.

(4) To act as the child’s legal representative. Parents are expected to take the child’s place as their representative in anything which is complicated, until they are 16.

Parental rights

The law sets out these parental rights:

(1) To have the child living with them or otherwise to regulate the child’s residence until the child is 16.

(2) To control, direct or guide the child’s upbringing in a manner appropriate to the stage of development of the child. Parents are allowed to say how their children should be brought up until they are 16.

(3) If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis.

(4) To act as the child’s legal representatives.

As you will see, there is some overlap between the parental responsibilities and parental rights. The law provides that the rights are designed to enable parents to fulfil their responsibilities.

Reaching agreement about children

If you have difficulty reaching agreement about where your children are to live, or what specific contact there should be, there are various routes that can be followed.

(1) Negotiation through solicitors. Family lawyers can help you reach agreement with the other parent about care arrangements for your children.

(2) Family mediation gives parents who are separating, the support and opportunity to discuss and make arrangements for their children. Mediation can help to avoid painful and expensive legal battles.

(3) Collaborative law involves solicitors and clients in meetings, with the focus on a common approach to agreeing what is best for your children.

(4) Court. The law discourages parents from asking for court orders unless they are absolutely necessary. The court has wide powers in making orders. The two main orders the court is asked to make are residence and contact orders. A residence order requires the child to live with one parent. A contact order is made when the child has his home with one parent and sees the other parent on a regular basis. Before making any orders relating to children, the court requires to consider three important principles:

(a) It will only make an order if it considers it is better to do so than not to. This is sometimes known as the non-intervention principle.

(b) It will regard the welfare of the child as the paramount consideration.

(c) It must so far as practicable have regard to the views of the child. This applies to children of all ages, but there is a presumption that children of 12 years and over have sufficient maturity to be able to express a view. Below the age of 12, the court will have to take a view on the maturity of the child to express a view and the weight to be given to their view.

The law does not consider that either the father or the mother has a better claim. The court will carefully consider what solution is best for the practical and emotional needs of the child.

The court can make other orders relating to children, including interdicts and specific issue orders. An interdict could be used to prevent steps being taken by only one parent in relation to the children, for example one parent seeking to move away from their local jurisdiction without the consent of the other parent. A specific issue order can be used to regulate other matters relating to the best interests of the children, for example deciding what school the child should attend.

Child welfare hearings

If a parent seeks court orders and raises proceedings before the court, the court will quickly fix a child welfare hearing at which both parents must attend together with their solicitors. At this hearing, the sheriff will listen to both parents’ views on the issue before the court, and will seek to assist and encourage the parents to reach a resolution. After hearing both parents’ arguments the sheriff may be asked to issue specific orders.

The sheriff may hear from the parties directly at a hearing, in addition to representations by their solicitors. In order to assist the court in reaching a decision, the court can call upon experts and in particular the court can order a reporter to produce a report. Generally speaking, a court reporter is an experienced family lawyer who will meet both parents and the child and then write a report on what he or she considers to be in the best interests of the child.

Whichever route you choose to follow, you must always consider what is in the children’s best interests. If you can agree a solution, you can embody this in an agreement specifying the precise arrangements for the children, which both parents will sign.

Not found what you're looking for?

Contact one of our members for more info about how they can help