Children

When separated parents cannot agree on with which of them their children should live, or arrangements for contact, we can assist on finding a resolution.

This can be done by negotiation between solicitors, or an application to the court for formal orders. Applying for a court order can be a stressful time - we will strive to make this process as painless as possible for you.

Contact & Residence

When the place of residence of children and contact can be agreed, this can be done informally between the parents or set out in a formal Minute of Agreement - a contract of sorts between parents.  The parent with whom children reside, has an obligation to promote and facilitate contact.  Parents can also agree a shared care arrangement, where children live with each parent an equal amount of time.  Parents should work together in making decisions for the upbringing of the children, and in the children’s best interests.

We recognise, however, that each family situation is different, and there may be reasons why parents are not able to communicate or reach agreement about the arrangements for their children. In these circumstances, court action may be required.

There are a number of orders the court can grant:

• who the children should live with - a residence order. 
• how much contact the child shall have with the non-resident parent - a contact order. 
• the court can also make decisions where parents are unable to agree, such as which school the child should attend - a specific issue order.

The court will consider a number of factors: the age of the child; the routine they are currently in; issues of safety and risk;  and, the wishes of the child, if they are old enough to express a view.  The paramount consideration for the court  is the welfare of the child.  Any order made by the court is made in the best interests of the child, not the parent(s).

We understand that court proceedings are not emabarked upon lightly by most parents, and is often a last resort, where attemptes to negotaiate and agree have failed.  We routinely appear in the family courts across Scotland and have a wealth of knowledge and experience of family law proceedings: from drafting the court papers, to appearing with you at court hearings. We will work tenaciously and efficiently on your case, and we also offer a sympathetic ear. If you have any concerns relating to the arrangements for your children following separation, or have been served with a court citation in respect of an action raised by the other parent, please contact us for advice.

Contact for Grandparents

When parents’ relationships break down this can sometimes result in the breakdown of the relationship between children and their grandparents.  If you have had regular and ongoing contact with your grandchild which has suddenly stopped, you should seek urgent advice.  In most cases contact can re-commence through negotiation or mediation.  In some cases it is appropriate to raise court proceedings.

Parental Rights and Responsibilities

Parents have a responsibility to:

• Maintain person relations with their children, and excercise direct contact with them on a regular basis
• Promote and safeguard their children's health, development and welfare
• Provide guidance to their children, in a manner appropriate to the stage of their children's development 
• Act as their children’s legal representative

Parents have the following rights to enable them to fulfil their responsibilities:

• To have their children living with them, or otherwise to regulate their children’s place of residence
• To control, direct and guide their children’s upbringing in a manner appropriate to the child’s stage of development
• To maintain personal relations and excercise direct contact with their children on a regular basis
• To act as their children’s legal representative

A child’s biological mother gains parental rights and responsibilities on the birth a the child. Prior to 2006, a father  married to the child’s mother also gained parental rights and responsibilities upon the child's birth. Umarried fathers, even if named on the child's birth certificate gained no such rights.  This inequality was addressed with the coming into force of the Family Law (Scotland) Act 2006, which provides that all fathers, provided they are named on the child's birth certificate automatically have parental right and responsibilities, regardless of whether they were married to the mother.  This only applies, however, to children born after 4th May 2006.

If a father is not named on the birth certificate, a mother can confer parental rights and responsibilities to him, by way of a formal agreement, at any stage.  Parental rights and responsibilities can also be conferred by the court.

Third parties, such as grandparents and/or extended family members can apply to the court for parental rights and responsibilities, normally where such family members are caring for a child long term.  The grnat of parental rights and responsibilities to a third party does not extinguish the parents’ rights.

The court will only grant an order for parental rights and responsibilities, if it is in the best interests of the child.

Those with parental rights require to make decisions on the upbringing of the child, such as which school they should attend, consent to medical treatment, religious upbringing, contact and residence.  If parties cannot agree orders of court may be required.