Parental rights and responsibilities, residence and contact

Family walking together

When parents separate, an important part of any discussion will focus on the arrangements for children of the family. In many cases, parents are able to negotiate and agree arrangements whereby children spend time between two homes. Any such shared care arrangement should operate in a way that has the children’s best interests and welfare at its centre.

Sometimes parents cannot reach agreement. If that happens, then it may be that one parent applies to the Court for an order in relation to residence – that is, inviting the Court to determine the place in which the children should principally reside; or contact – that is an order regulating the periods of time children spend with the parent with whom they do not reside.

The nature of the orders the Court may be asked to grant depends on the individual making the application. It is possible for individuals other than parents to make applications under the Children (Scotland) Act 1995. Such applications can be made by any person who is able to satisfy the Court they have an interest in the children. This may include grandparents or other relatives who have been involved in the care of the children. Sometimes an application can be made by a child’s brother or sister who is living separately from the child. Applications are also made from time to time by a child’s foster carers or kinship carers.

The Court can also be asked to grant a range of orders under the Children (Scotland) Act 1995 relating to matters such as:

  • Parental rights and responsibilities;
  • Specific issue orders in relation to education, religion and medical treatment;
  • Relocation – changing the place/location in which children reside;
  • Dispensing with one parent’s consent to a holiday abroad;
  • Passport applications;
  • Deprivation of parental rights and responsibilities.

Unmarried fathers can acquire parental rights and responsibilities in a number of ways. If the child is born after May 2006 and the father is named on the birth certificate, he automatically has parental rights and responsibilities in relation to the child. If the parents enter into a Section 4 Parental Rights and Responsibilities Agreement, the father will have parental rights and responsibilities. Finally, an unmarried father can apply to the Court for a Court Order under and in terms of which he is awarded parental rights and responsibilities. This can be a stand alone application or made at the same time as an application for other orders under the Children (Scotland) Act 1995, such as contact or dispensing with consent to a holiday abroad.

In determining such issues, the Court will have regard to the children’s welfare as its paramount concern. The Court will reach a view as to what is in a child’s welfare by considering all the circumstances in the case, including any views expressed by children. The Court will determinate in the particular circumstances of each case, the weight that is to be attributed to any view expressed by a child in Court proceedings.

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