Child law solicitors

The term Residence is the legal term to describe the arrangement whereby a child lives on a day to day basis with a specified person. This was previously known as ‘custody’.

It is possible following a separation for a child to reside with one parent, or alternatively for the residence of the children to be split between both parties.

Individuals, who have Parental Rights and Responsibilities in relation to a child, have a legal right to have a child reside with them.

If two individuals holding parental rights and responsibilities cannot agree on where a child should reside, they can apply to the court to make a decision on the matter. A Court in making any decision on where a child is to reside, will regard the child’s welfare as the paramount consideration and will consider whether the order is necessary and in the best interests of the child.

If you have any questions about child residence our family lawyers can provide expert advice on how to navigate such legal matters. Get in touch with your local office today.

The term Contact is the legal term used to describe the specified times and dates that a non-resident parent has time with their children. Contact was previously known as ‘access’.

A non-resident parent is the parent who the child does not live with on a day to day basis.

If two individuals holding parental rights and responsibilities cannot agree on the extent of the contact a child should have with a non-resident parent, they may rely on court orders to make a decision on the matter. A Court in making any decision on where a child is to reside will regard the child’s welfare as the paramount consideration and will consider whether the order is necessary and in the best interests of the child.

A person who holds Parental Rights and Responsibilities for a child has a legal right to have regular and consistent contact with the child if the child does not live with them on a day to day basis.

In Scotland, child maintenance is a legal requirement that non-resident parents should pay. The Child Maintenance Service is the government body who deals with matters regarding the payment of child maintenance. The Child Maintenance Service was previously known as the Child Support Agency.

The amount of child maintenance payable by one parent to the other is determined on a number of factors which are regularly updated by the Child Maintenance Service. However, the extent of the payments required are based upon; the amount of gross earnings of the non-resident parent or whether they are in receipt of state benefits, how many nights per year the non-resident parent has contact with the child, the number of children and the amount of other children the non-resident parent may be paying child maintenance for.

The Child Maintenance Service offers a support and advice website known as Child Maintenance Options which also includes a calculator for establishing the amount of child maintenance payable. It is however possible to reach agreement between parents in writing on the amount of child maintenance which should be paid. This option avoids the additional charges which may apply from the Child Maintenance Service if they are required to enforce the payment of child maintenance.

After a separation, it is usual that two parents will begin to live separately. However, for employment, family support, financial or other reasoning this may involve one parent who could be the primary carer of the children wishing to relocate with the children to another town, city or even country. Such relocations can clearly have significant impacts on the parties separating but also on the relationship between both parents and their children.

The implications of proposed relocations vary greatly on the particular circumstances of a case and the logistics of the relocation.

If you require child law advice, contact your local Harper Macleod team and one of our child law experts will advise you on available options.

‘Legal child custody’ refers to what is known as a residence order under Section 11(2)(c) of the Children (Scotland) Act 1995. When a parent refers to ‘custody’ of a child, what they are typically referring to is the right to have the child live with them (and not the other parent). Both parents have the parental right to have their child reside, or live, with them. Therefore, if there is a dispute regarding which parent the child should reside with (i.e. which parent should have ‘custody’), then either parent can apply to the court seeking a residence order. It will then be for the court to decide what is in the child’s best interests.

If you’re uncertain about your child’s living arrangements, reach out to one of our child law solicitors who will provide constructive advice for your individual circumstances.

When there is a dispute about which parent should have custody of a child and either parent seeks a residence order via the court, the court will normally appoint a Child Welfare Hearing. At a Child Welfare Hearing, the court will make a decision about custody having regard to the child’s welfare and what is in the child’s best interests. The child’s views may be sought, if appropriate. The child’s welfare is always the paramount consideration and the court must be satisfied it is in the child’s best interests to make such an order. Child Welfare Hearings are held in private, where only the parents, the parents’ solicitors, the sheriff and the sheriff clerk are present.

Where there is not a dispute about which parent should have custody of a child, then custody is simply determined by agreement between the parents. There is no need for court proceedings in these circumstances.

If you and your ex-partner can’t achieve an agreement you should seek legal advice as knowing your legal options will escalate the process. A specialist family lawyer can advise you on how to achieve the best outcome for you and your child.

The Children and Young People (Scotland) Act 2014 s.97(1) states a ‘child’ is defined as a person who has not attained the age of 18 years. However, most of the parental responsibilities contained within the Children (Scotland) Act 1995 only apply to children under the age of 16. For example, up until the age of 16 a parent has the parental responsibility to: safeguard and promote the child’s health, development and welfare; to provide direction to the child in a manner appropriate to the child’s stage of development; if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and to act as the child’s legal representative. All of this only applies to children under the age of 16. However, under the same legislation parents have the parental responsibility to provide guidance to a child until the child is 18.

Anyone who has parental responsibilities in respect of a child per s.1 of the Children (Scotland) Act 1995 has legal responsibilities for that child. This can be genetic parents or adoptive parents. Additionally, the court has the power to make orders imposing parental responsibilities. A child’s birth mother is automatically conferred parental responsibilities upon giving birth. A child’s father is conferred parental responsibilities if either of the following apply: (i) if he is married to or in a civil partnership with the mother at the time of the child’s conception; or, (ii) if he is registered as the child’s father on the birth certificate. Adoptive parents are conferred parental responsibilities if they are granted an adoption order under s.28(1) of the Adoption and Children (Scotland) Act 2007.

Those with parental responsibilities have the legal responsibility to:

• Safeguard and promote the child’s health, development and welfare;
• Provide, in a manner appropriate to the stage of development of the child –
  • Direction;
  • Guidance;
• Maintain personal relations and direct contact with the child on a regular basis;
• Act as the child’s legal representative

In some situations the local authority can have or share certain legal responsibility for a child. For example, where there is a permanence order in respect of a child the applicant local authority must assume certain parental responsibilities, and the order can provide for the sharing of the remaining responsibilities between the local authority, parents, and even foster carers (Adoption and Children (Scotland) Act 2007 s.81 and 82). Local authorities also have an obligation to safeguard and promote the welfare of children ‘in need’ per s.22(1) of the Children (Scotland) Act 1995.

There is no right or wrong answer. It is entirely dependent on the individual facts of the case.

When custody is decided by agreement between the parents (i.e. without the need for court proceedings or the intervention of family law solicitors), it is often the case the child will continue to live with whichever parent is seen as being the child’s primary carer. This is usually whichever parent has the day-to-day care of the child or who spends the most time with the child. This can often be the mother if the mother has given up employment in order to provide childcare, whilst the father remains in full-time employment. But this need not be the case, and indeed is not always the case.

When there is a dispute about custody and the court has to decide whether to grant a residence order, a residence order will only be granted if the court deems it is in the best interests for the child to reside with that parent. There can be a preference by courts to retain the ‘status quo’ and decide the child should continue to reside with the parent who is seen as being the child’s primary carer. This is to avoid making big changes in a child’s life and causing disruption when a child is settled.

If you require professional advice for this or other child law issues our family law team can look into your legal position and advise on all available options.

There is no guaranteed method for any parent to get ‘full custody’ of a child. It is reiterated that residence orders are only granted in favour of a parent if it is in the child’s best interests, with the child’s welfare being the paramount consideration. However, even if one parent has a residence order granted in their favour, the non-resident parent still has a number of parental rights and responsibilities in respect of the child which allow them input into the child’s upbringing. The granting of a residence order does not affect the exercise of remaining parental rights and responsibilities.

Relocation where children are involved is often a very emotive subject, given that it impacts the exercise of parental rights and responsibilities for the non-resident parent. It can also affect the child.

Relocation can result in the child having less contact with the non-resident parent. In some circumstances it can be deemed detrimental for the child to see the non-resident parent less – especially if the child had frequent contact with the parent prior to relocation.

The parental right to maintain personal relations and direct contact on a regular basis is a recognition of the intrinsic value to a child of the natural link between the child and the parent. This link has been described by the courts as one which is ‘felt instinctively’ and is a ‘deep and abiding theme in literature…and in social and political history’. Therefore the parental right of contact recognises that it can be assumed that a child will benefit from contact with a parent. As such, relocation can affect a child by disrupting this natural link and interfering with contact. Contact with a parent is a fundamental right of the child and children have a fundamental, emotional need to have an enduring relationship with both parents.

Relocation can cause disruption to children’s lives, by moving them away from somewhere they are settled. It might mean they would be unsettled after the move i.e. at school, with sleeping, behaviour etc. Relocation upsets the status quo which can sometimes be viewed as a negative thing in relation to children, because children can be impacted by change.

However, it is important to note that relocation can also be beneficial for a child in the right circumstances, if it is in their best interests to relocate. This is entirely dependent on the individual child and individual circumstances. If relocation is disputed by the non-resident parent, it is for the court to decide if relocation is beneficial for the child.

Yes. Both parents have parental rights, meaning both parents have the right to a say in where the child lives. Therefore, a parent may not remove a child habitually resident in Scotland from the UK, or retain such a child outside the UK without the consent of all persons who have and are exercising the parental right to regulate the child’s residence or the parental right of contact. If such persons do not consent, then the parent wishing to remove the child from the UK must obtain a specific issue order from the court allowing them to do so. Again, orders are only granted if it is in the best interests of the individual child, not the interests of the parent seeking to relocate, with the welfare of the child being the paramount consideration. Whether or not relocation is likely to be granted is very dependent on the individual facts of the case.

If the parent wishing to relocate has not applied to the court for a specific issue order, and the non-resident parent is worried about the child being relocated abroad without their consent, the non-resident parent can apply to the court for an interdict or interim interdict prohibiting the removal of a child from the United Kingdom or any part of it. An order for surrender of a United Kingdom passport belonging to a child may be made where interdict has been granted.

Additionally, a person having reasonable cause for suspecting the imminent removal of a child from the United Kingdom may apply, via the police, for a ‘port stop order’ which has the effect of HM Revenue and Customs alerting all airports and seaports as to the potential abduction. The police should be provided, if possible, with photographs of the child and parent suspected to have taken the child.

Yes – parents don’t need to be seeking divorce to deal with care arrangements for children. Child care arrangements and divorce are separate issues and as such are dealt with separately, though they can often feel intertwined. Cohabiting parents can still seek the assistance of an experienced family law solicitor to assist with child custody. In practice, a court will not grant divorce anyway until care arrangements for children are agreed first.

Child custody can be arranged informally with the other parent, or can be arranged formally via a minute of agreement or residence order – none of which requires divorce proceedings to be raised.

Yes. Some separating parents manage to agree child care arrangements without the intervention of solicitors, a formal agreement or the court. But given that both parents have the parental right to have the child reside with them, agreement is still required between the parents as to who the child is to reside with. If there is no agreement and parents are in dispute regarding custody, then parents should contact an experienced family law solicitor for assistance during this difficult time.