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Listen
Your Children Matter
Part two
Legal Steps
We've looked at what the law expects of you as parents and how you can get legal responsibilities for a child you look after. But in a way in the first part of this booklet we've been talking about situations where the law is in the background. We'll now think about some of the times in family life when parents and children come into direct contact with the law.
- Registering a Child's Birth
We need to start when your child is born because one of the first things mums and dads do for their children is a legal action - they register the child's birth. How does that work? Well,
go to the Registration Office in the district where the child was born or where the mother lives and gives the information needed for the child's birth certificate. You must do this within 21 days.
Certain other people can register births if mum or dad can't: ask for advice at your local Registration Office.
Remember to take with you: - Your card from the hospital with details of your baby's birth - even if your baby is born at home you get one of these.
- Your marriage certificate.
- Your birth certificate if you're not married.
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One more thing about registering birth - if your pregnancy has lasted more than 24 weeks and then, sadly, your child is stillborn (born dead), you have to register the birth.
- What about unmarried fathers being named in the Register?
A dad who is not married to mum can only be named in the Register as the father if: - He jointly signs the register with mum, or
- He and mum sign declarations that he is the father
(these are available from the Registrar), or - A court declares that he is the father and mum registers
the birth.
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Remember - it's being married to the child's mother, not having your name on the birth certificate, which gives you automatic parental responsibilities and rights if you're a dad.
Well that's your choice entirely - if you can make up your mind - which is often hard even when you've had nine months to think about it!
Even your child's last name is your choice. Most couples who are married use the husband's last name but you don't have to. Just remember your child's name will be one of the ways that you tell the world he/she belongs to your family so keep that in mind! The same applies if you change your name after the child is born, maybe because you've divorced or remarried.
Before you change your child's name, think what the effects might be for him/her, especially if he/she is already at nursery or school. Could it cause confusion, or upset other parts of the family? If you're sure it's the right thing to do for your child, you just need to tell anyone involved with the child what his/her new name is. You don't have to do anything else.
If you want to change the name on the birth certificate you can get a form to do this and instructions from the Registrar or the Registrar General for Scotland. Anybody else who has parental responsibilities and rights has to agree too.
SEPARATION
Parents who can't live together
The other time when some parents may come into contact with the law is when they can't go on living together. That doesn't mean, though, that they need to be involved with the court.
Let's look at the McEwens from No.6. Gary's parents separated two years ago. It was a difficult time for them all. There were so many decisions to make and things to sort out. Gary's dad had left, so Gary was living with his mum. He was quite happy with that but he did want to see his dad. At first it was hard because Doreen was afraid of losing Gary to his dad. She and Jim couldn't agree about how it was to work. Then they went to mediation and were helped to talk about what was best for Gary without shouting at each other. Now Gary lives with his mum, Doreen, and goes to Jim's usually twice a week - unless he's playing football. On those nights Jim goes to watch him and then brings him back to Doreen's. Doreen and Jim didn't need to take any legal action to sort things out. They could sort things out between themselves with the help of mediation. This was possible because, even though they don't live together any more, the law sees BOTH OF THEM keeping all the responsibilities and rights that go with being a parent. BOTH OF THEM still playing a part in Gary's life. Now they live apart they do this separately rather than together. BOTH OF THEM co-operating for Gary's sake. One important area of Gary's life is his school. At first Doreen didn't want Jim to know about how Gary was doing at school. She thought he would blame her if Gary wasn't doing well - and anyway he'd never been interested in Gary's school when they'd been together. But they explained at the mediation service how Jim had the same right as her to see Gary's report card and to talk to his teachers. Gary's dad would have the right to find out how he was doing at school even if he and Doreen got divorced. She doesn't like that but she knows she has to go along with it. |
That's how Doreen and Jim sorted things out. Contact details on mediation. But let's think about what the other possible options are:
DIVORCE
That's what happened to lain Reilly's parents at No. 3.
They'd been separated for four years: then Fiona decided she wanted to get married to Bob. So she applied for a divorce. Andy didn't care about the divorce but he was worried that Bob would take over as Iain's dad and he'd get left out. So he asked his solicitor about getting custody of lain. He was shocked to find out that he couldn't ask the court for custody any more because the law now sees BOTH parents as equally responsible for their children even if they divorce. Although his solicitor explained that Bob marrying Fiona wouldn't affect Andy's responsibilities for Iain, Andy felt he wanted to get something from the court to strengthen his position. So he asked the court for a residence order so that Iain could live with him and not with Fiona. Fiona's solicitor let the court know that she was against that.
The sheriff decided to have a Child Welfare Hearing so that he could find out from Fiona and Andy what they wanted and how they'd tried to sort things out.
Fiona and Andy had to go to the Child Welfare Hearing. So did their solicitors. The sheriff asked Andy why he wanted a residence order. Andy explained it was to stop Bob taking over as Iain's dad. The sheriff explained to Andy that he would still have parental responsibilities for Iain after the divorce even if Bob got them too. He told Fiona and Andy to go away and sort out for themselves arrangements for Iain, because he would only make an order if it was needed for Iain, not just to make Andy feel better. They would also need to ask Iain what he felt.
Andy and Fiona discussed matters and sorted out how Andy could still be part of Iain's life. They agreed that Andy would have contact, and no court order was necessary.
Because divorce is a LEGAL PROCESS the court has to be involved. It puts an end to the relationship between the parents but not between parents and their children.
So, remember, if you are getting a divorce and you can't agree on arrangements for children BE PREPARED:
- the court will expect you to have tried everything to sort out your differences about your children before it will consider any action
- the court will refuse to make an order to make you feel better or in a stronger position
- the court will expect you to show why it's not good for your child to have contact with his/her other parent if you want to stop them seeing the child
- the court will give your children a chance to say what they think if they are old enough.
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A word about how the court will do that.
Your child may be sent a form, unless the sheriff decides that he/she is too young to understand it. It looks like this:
F9 Form
It will tell your child about the decision the court has been asked to make and ask if the child wants to tell the court anything. Children don't have to fill it in - Iain didn't when he got one. As well as sending the form, the sheriff can ask to talk to a child or get someone to talk to the child and write a report for the court. To find out more about this you could read another booklet, "You Matter", which tells children more about how this works.
A word about child support
If you don't live with your child, you will still be expected to support him/her. Again, try to agree about this too. If you can't, the Child Support Agency may make an assessment. The Agency will automatically be involved when the parent a child is living with is on benefit.
Using the Law
The law wants to stay out of family life. Sometimes, though, you might find you need legal help. It can be difficult finding your way through the technical words and processes. Here are some of the technical words explained. These will only apply in Scotland. The law is different in England, Wales and Northern Ireland, and so are the words used.
Family Mediation: This is a service for parents who are no longer together. It offers a way of making arrangements for children, which involves the parents talking together with a trained mediator about what's best for their children. If they want the arrangements put into a legal form, a solicitor can do that for them without going to court.
Going to court:
Sheriff Court | This is the court which usually decides about the divorce and arrangements for children. |
Initial Writ | This is what your solicitor sends to the court saying what you want the court to do, why you want it and why the court should do it. |
Pursuer | The person asking the court to do something in an initial writ. |
Defender | The person replying to what's asked for in the initial writ. |
Intimation of an Action | Letting someone know about something asked for in the initial writ. |
Aliment | Financial support or maintenance. |
Curator | Someone the court may appoint to look after a child's interests and find out what the child thinks. |
What the court does:
Child Welfare Hearing | A meeting called by the sheriff if you can't agree about what is to happen to your child. Each of you and your solicitors must go. |
Order | A statement of what the court says must happen. |
Orders about children:
The old concepts of custody and access were abolished by the Children (Scotland) Act 1995. Now the court will only make an order about the child if the court is sure that making the order would be better for the child than not making it. Orders are not intended to be for the parent's benefit but for the child's benefit. So:
- A Residence Order says who the child lives with. It may say the child can live with different people at different times.
- A Contact Order says when a child should see someone, usually a parent, who doesn't live with him/her. This can cover other people such as grandparents.
- A Specific Issue Order says what must happen in a particular area of a child's life - such as school, health treatment or religion.
- A Prohibited Steps Order says what must not happen in a particular area of a child's life.
There will be other technical terms you will come across. If you don't understand anything, get your solicitor to explain until you do. That's his/her job!
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