ROBERTSON WYSE SOLICITORS

Whilst it is always preferable that parties or parents can agree the arrangements for their children upon a separation, this is not always possible where there is disagreement. A Sheriff can be asked to grant an Order to secure child’s placement or regulate contact between the child and the non -residence parent. The Sheriff Court can make an Order under Section 11 of the Children (Scotland) Act 1995 in order to resolve disputes.

Parents and parties are generally encouraged to talk to each other and make every effort to agree the care arrangements and resolve any issues in dispute themselves. We strongly advise this. You know your children and what is best for them better than anyone else. If this is simply not achievable, and in many cases this cannot happen, please contact a solicitor and discuss other options, such as family mediation or family therapy or straight forward negotiations through solicitors.

Residence Orders regulate with whom a child should reside. This would be their main place of residence. It is possible to obtain a shared residence order and the Court could for example directing that a child live with one parent for 7 consecutive days and the other parent for the next 7 consecutive days. The Court will on grant an Order in terms of Section11 regulating a child’s Residence and Contact it is in the best interest of the child and if it is better to make an order than not. We recognise there is no one size fits all approach to these matters and each case is different from the next. What works for one family will probably not work for the next. 

 If parties or parents cannot agree, the Court can be asked to resolve the dispute. Orders can be made under Section 11 of the Children (Scotland) Act 1995 in order to resolve disputes. The Court can make an Order for Contact directing that a child should have regular direct or indirect contact with a person. This was previously called ‘access’ or sometimes called ‘visitation’. Contact can be overnight which is called residential contact. It can also be indirect contact which includes Facetime, Skype calls, text messages or any other electronic. The Court is still making Order for ‘letterbox contact’ which allows someone to keep in contact by writing to a child or sending birthday/Christmas cards. 

 The natural parents of a child will already have parental rights and responsibilities. It is possible to ask the Sheriff to grant an Orders granting someone else or restricting someone’s parental rights and responsibilities

Parental responsibilities are:

1. to safeguard and promote the child’s health, development, and welfare;
2. to provide in a manner appropriate to the stage of development of the child
   i.  direction.
   ii.  guidance to the child;
3. If  the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and
4. To act as the child’s legal representative

but only so far as compliance with these responsibilities is practicable and in the interests of the child.

Corresponding parental rights are also granted to enable a parent to fulfil his parental responsibilities as outlined above. Your rights include being able to make choices about how your child is brought up, where your child should live. If your child is not living with you, you have the right to maintain personal relations and direct contact with the child on a regular basis. .

Specific Issue Orders, another Section 11 Order which can be granted by a Sheriff, can be sought to regulate a variety of issues which may be in dispute. For example, the Court might rule on whether a child should undergo a particular medical treatment, the school the child should attend, whether the child should be allowed to be taken on a holiday outside the UK, which religion the child should follow and the name a child should be known as.