When a couple decide to separate, it is rarely a decision that is arrived at easily, and this is undoubtedly made harder when there are the future care arrangements for children to be considered.
It is generally considered to be in a child’s best interests for both parents to be actively involved in their lives following separation or divorce.
The law recognises that parents are best placed to make future care arrangements for their children, and indeed the court can only intervene and make orders when it is necessary for them to do so.
Most parents are able to put aside their differences and agree future care arrangements for their children privately.
Every effort should be undertaken to achieve this.
Prior to entering into private discussions, it is helpful for separating parents to fully understand their responsibilities and rights. At Aberdein Considine, our expert team of family lawyers provide clear and child-focused advice in relation to all aspects of parental responsibilities and parental rights.
The Children (Scotland) Act 1995 regulates orders relating to parental responsibilities and parental rights. It was designed to integrate the terms of the United Nations Convention on the Rights of the Child into domestic legislation.
The Children (Scotland) Act 1995 sets out the responsibilities that a parent has towards their child and it details the corresponding rights that a parent has to enable them to fulfil their responsibilities.
Who has PRRs?
It is possible to obtain PRRs if a party does not automatically have them. It is also possible for the Court to remove PRRs.
Residence, known as ‘custody’ prior to the 1995 Act, is the legal term used to refer to where and with whom a child under the age of 16 lives.
Contact, known as ‘access’ prior to the 1995 Act, is the legal term used to refer to a person seeing a child who does not live with them. Although typically it relates to direct contact, it does include indirect contact such as by means of telephone, Skype and letter / email.
If parents are able to reach agreement through private discussion or by way of traditional negotiation or alternative dispute resolution, they may elect to record the arrangements in a Minute of Agreement.
Unfortunately, sometimes both private discussions and other methods of dispute resolution fail and the only way that the issue(s) can be resolved is by applying to the court for a determination to be made.
Court action should always be considered to be a last resort, as the court has very wide discretion and orders may be made which neither of the parties particularly like.
The court can make a variety of orders, but the main orders include orders for parental responsibilities and parental rights, residence, contact, interdicts (an order prohibiting someone from doing something) and specific issue orders (which can encompass a multitude of matters including, but not limited to medical treatment, schooling, relocation, the name of a child.
In every case that proceeds to court where an order in relation to a child is sought, the court is required to regard the welfare of the child as the paramount consideration and is directed not to make an order unless it would be better for the child that an order is made than no order made at all.
Taking into account the child’s age and maturity, the court is also required, so far as is practicable, to give the child an opportunity to indicate whether he / she wishes to express views in relation to any order sought in respect of them.
Adoption is the legal process by which the relationship of parent and child is created by an order of the court.
The legal procedure transfers all parental responsibilities and parental rights from the birth parents to the adopters. The adopted child then becomes a member of the new family and will usually take the adoptive family's surname.
The current law is contained in the Adoption and Children (Scotland) Act 2007, which came into force on 28th September 2009. The Act brought in provisions in an attempt to modernise and improve the legal framework associated with adoption. The Act extends the scope of people who are able to adopt, and allows, for the first time, unmarried and same sex couples to adopt jointly.
In Scotland, a child can be adopted by a single person or by a couple, provided that the adoptive parent(s) are over the age of 21. Those wishing adopt children in Scotland are required to apply to the relevant court for an adoption order. If the child has not been placed with you by an adoption agency (for example, step parent and family adoptions) there are rules which have to be adhered to before any such application can be made.
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