Child disputes and emergency orders

Children writing at school desks

Separations can be extremely challenging to navigate even at the best of times, but particularly when there are children involved. In most cases, both parents will hold full parental rights and responsibilities in respect of their children, but they often do not agree on how those should be exercised post-separation. This could relate to a wide range of important issues such as their care arrangements, schooling, religious upbringing, or even undergoing certain medical procedures, to name a few.

Unfortunately, when there is a dispute about matters relating to a child’s health, education or welfare, situations can arise whereby one parent attempts to make certain decisions unilaterally, without the knowledge or consent of the other. For example, the parent with the day-to-day care of the child may attempt to relocate with the child or to change their school without consulting the other parent. Decisions such as this could have significant, long-term implications for the child which require careful consideration. The other parent may wish to take steps to prevent such decisions being made without their consent. This is where s11(2)(f) of the Children (Scotland) Act 1995 applies. It gives the court the power to make an order: “prohibiting the taking of any step of a kind specified in the interdict in the fulfilment of parental responsibilities or the exercise of parental rights relating to a child or in the administration of a child’s property”.

In short, this means that the court can grant an order, known as an “interdict”, preventing certain steps or action being taking in relation to a child which could affect their health, education or welfare. The court’s powers under this section are fairly wide and could include a range of issues. This section of the Children (Scotland) Act 1995 is most commonly used to prevent the removal of a child either from a parent’s care in disputes about residence, or from the UK or jurisdiction of the court for the purpose of relocation. That being said, an interdict could be sought in any number of situations which require emergency preventative action until a dispute can be resolved. Examples could include medical procedures such as circumcision, whether for religious or non-religious reasons, non-emergent surgery, vaccines etc.

As interdicts are preventative orders, they are usually sought on an emergency or “interim” basis, and can be obtained fairly quickly provided that you act as soon as possible. If you are concerned that decisions may be made concerning your child without your consent, whether that be in relation to any of the examples outlined above or in relation to another matter, it is important that you seek legal advice as a matter of urgency. Once the status quo has been changed, it may become more difficult to reverse or challenge the decision.

Alternatively, if you are the one seeking to make decisions which you believe to be in your child’s best interests, but you are being prevented from doing so due to a lack of consent from the other parent, you can potentially seek a “Specific Issue Order” under s11(2)(e) of the 1995 Act. Specific Issue Orders tend to relate to longer-term issues, such as relocation, education, changing your child’s surname etc., but they can also be obtained on a more urgent basis for issues such as holidays, special events, or other time-sensitive matters. Again, it is important that you identify any potential dispute as early as possible to enable you to take action accordingly.

Should you require any further information or advice in relation to any child-related matters, please do not hesitate to contact our family law team. We would be more than happy to assist.

Email Eilidh Campbell
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