Where children are involved, courts are absolutely the place of last resort. Indeed the courts won’t make orders in relation to children unless they are necessary. I offer Mediation and Collaborative services where you can discuss your children in a supported environment. There are also a number of other services that can offer help and support such as Parenting after Parting classes and family consultants who can help you draw up a parenting plan. What I have learned over the years is that parents should never put their children in the position of having to choose between them. They should also present a united front to their children if at all possible and should never denigrate the other parent in front of them. This can be especially hurtful – after all the other parent is the other half of your child. Where possible tell your children together that you are separating. Make a plan and prepare a script that you will both stick to. Don’t blame the other parent and above all reassure your child that they have done nothing wrong and that you both love them very much.
If you are married or if unmarried and the father is on the birth certificate and the child was born after 2006 both parents will have parental rights and responsibilities.
Even if you have parental rights and responsibilities you may still need to apply to the court for an order. If you are unmarried and not on the child’s birth certificate you will need to apply for a declarator of paternity before going on to ask the court for an order. This can be done in the same court action.
If you have to go to court there are a number of different orders the courts can make:
A Residence Order -
this states where a child should reside. The court can make such an order in favour of more than one person, stipulating how long the child should spend with each parent. In a shared care arrangement for example both parents could have a residence order
A Contact Order -
regulates telephone calls, visits, overnight stays, weekends or holidays with a parent or any other person with an interest.
What are the types of Contact?
Indirect Contact – may consist of letters, emails, Facetime and telephone calls. This may be ordered if, for example, a parent is far away from the Child or to help assist in re-establishing a relationship after a lengthy period where no contact has taken place, before moving on to direct contact.
Direct Contact – involves face to face meetings. Occasionally, direct Contact is supervised.
Specific arrangements including the time and date of contact can be set out in a contact order.
Failing to obtemper a child contact order amounts to a contempt of court and could result in imprisonment.
Specific Issue Order – the courts can consider a specific issue order if parents are unable to agree on a specific aspect of their child’s upbringing such as education, health and one off events such as removal to a foreign country for a fixed duration.
In all cases the court has to consider what is in the best interests of the child.
What about my child having a say?
The court does require to consider the views of a child although very young children will be deemed too immature to have formed a view. Twelve is deemed to be the age that children are mature enough to express a well formed view however courts can ask children who are a bit younger. The weight given to these views will differ depending on the child’s age and sphere of influence. If a case is in court, a child will be asked to fill in a form F9. A child’s views are by no means determinative. The court recognises that what a child wants may not always be in its best interests.
Who is a Court Reporter?
In many cases where there is a factual dispute a court reporter will be appointed. The cost is not insignificant and averages at around £3,000. The role of a court reporter is to interview people on a list decided by the court.
This is normally both parents, extended family on both sides, teachers and the children. After interviewing everyone the court reporter will make recommendations to the court as to the nature of interim orders to be made. The court reporter will also try to assess if the children have been adversely influenced by one parent over the other.
How old does the child have to be for an Order to be made?
Any child Order made will apply until the child turns 16.
Who can apply for a Child Order?
Those able to apply are the child’s parents or step-parents, those with parental rights and responsibilities and anyone who can establish that they have an interest such as the child’s Grandparents.
Sometimes life events dictate a move away from Scotland. It might be a job offer, a new partner or maybe you want to go back home where you have the support of your family.
You are of course free to go where you choose, however you need the other parent’s permission to leave with your children. If you don’t have that you will need to apply to the court for an order. You may have just found out that your ex wants to leave Scotland with your children and want to protect your relationship with them.
In both cases my strong advice is that you do nothing until you seek legal advice. Removing children without consent is child abduction and sanctions can be applied. You will likely be forced to bring the children back to Scotland and you will have to fight a custody battle in Scotland on the back foot. Again, the best way to approach this is with the buy in from your ex. Explain to them your motivation for leaving. Give them all the information about where you will live, schools for the children etc. Offer them all of the school summer holidays. Make it easy for them to visit.
If you are the parent who is going to remain in Scotland, don’t agree to any move until you have an enforceable agreement in place to ensure you will continue to see your children.
Sadly this happens more often than you would think. The good news is that there may be something you can do about it to effect the return of your children to Scotland. Many countries are signatories to the Hague Convention on international child abduction. If your children have been removed from their place of habitual residence ( wrongful removal) you can take steps to get them back as long as the place they have been removed to is a signatory to the Convention. Likewise, if you have consented to a removal for a fixed period such as a holiday and your children are not returned ( wrongful retention) you can also take steps to have them returned.
You need to act quickly and make an application through the central authority ( Scottish Government) I can help you with that and to find a good lawyer in the country the children have been taken.
The Child Maintenance Service (CMS) has jurisdiction UK wide for child support. The CMS can have jurisdiction until a child is 20. It is better to enter into a voluntary arrangement as the CMS will charge a fee if they need to extract payment.
They have a calculator on their website based on gross income. The parent with care’s income is not taken into account. If you are a high earner ( currently in excess of £3000 a week ) you have reached the CMS limit. The other party is then eligible to take you to court for a top up. The CMS does not have jurisdiction in relation to payment of school fees. Again, you would need to agree this or resort to court.
Once your child is at university, your obligation to support is not at an end. In fact you are liable for support up until a child is 25 if studying. Once the CMS no longer have jurisdiction a child could take a parent to court for support.