HM Insights

The Shetland blog: Resolving child contact & residence

When a couple separates one of the issues which can cause the most animosity is what is to happen with the children. Where are they going to live and how much time are they going to spend with each parent?

Often people don’t know where to start. Keeping communication open and honest is best but that's not always possible in practice. One way in which matters can be resolved on an amicable basis is by engaging with a mediation service such as Relationship Scotland. Mediators can help parents reach a compromise position, sometimes with the input of children.

If agreement cannot be reached directly or with the assistance of a mediator, then there is the option of involving solicitors. Each person instructs their own solicitor and negotiations can take place via letter or sometimes a joint meeting, if everyone agrees that would be helpful. If negotiations fail the alternative is to raise court proceedings.

Shetland Blog Image Harper Macleod Lerwick Solicitor Estate Agents Lawyer

What does the law say?

The law surrounding children and separation is set out in the Children (Scotland) Act 1995. The most important aspect for the court is the child's welfare and what is in the child's best interests. Children 12 and over are presumed to have sufficient age and maturity to give their own view but there is no guarantee the court will agree with it.

If court proceedings are raised the Sheriff (the judge) can make an order deciding who the child lives with (known as a residence order) and an order stating how much contact they should have with the other parent (known as a contact order). Other issues such as education or child relocation can also be regulated by the Sheriff, who will not make an order unless it is absolutely necessary.

It is generally accepted that a child should have a relationship with both parents unless there are fundamental reasons why this should not take place. If a child was born after 2006 and both parents are named on the birth certificate, both parents will have what is known as parental rights and responsibilities in relation to the child. These include the power to make important decisions in relation to matters such as health, welfare and education. Parental rights include the right to have the child live with them, or maintain direct contact with them if the parent and child do not live together.

Deciding to start proceedings at court should not be done lightly. It incurs additional expense and does not generally improve relations between parents. You are also putting the decision-making in the hands of someone who may not necessarily agree with what you want. However, if one parent is simply refusing the other parent contact with the child then court proceedings can have the benefit of taking the decision out of their hands.

If you are unable to agree matters with your ex-partner directly and require advice, it may be in your best interests to speak with a solicitor.