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ANNEX: YOU, YOUR CHILDREN AND THE LAW
This section of the Parenting Agreement - Guide is not intended to be a comprehensive explanation of family law in Scotland. It merely touches on some of the more common aspects of the law as it relates to parents and children.
Firstly, it is important to remember that the Parenting Agreement itself is not a legal contract and is not intended to be enforced by the courts. By completing and signing the Parenting Agreement you are not making a legally binding commitment, this is not its purpose. The Parenting Agreement is for use by separated parents in a voluntary way for the benefit of their children and themselves.
Children in law -the underlying principles
The principal law relating to children is contained in:
- The 'Common Law'
- The Family Law (Scotland) Act 1985
- The Children (Scotland) Act 1995
- The Family Law (Scotland) Act 2006
'Common law' is the law which has gradually built up as a result of decisions taken by the courts over time. The Acts of Parliament (or 'statutes') set out the basic principles which must be observed by anybody taking decisions which affect children. These principles should guide parents who make these decisions for themselves.
The principles are:
i) In any decision about a child, the paramount consideration is what will be in the best interests of the child.
ii) Both parents enjoy and have clear, equal responsibilities and rights in respect of their children. These continue beyond the child's 16th birthday. Both parents, whether separated or together, should exercise these parental responsibilities constantly and consistently.
iii) A court order should not be made unless it would be better in all the circumstances of a case to make one.
iv) In any decision about children, their views and wishes must be taken into account. The extent to which these wishes will guide the decision will vary according to their age and maturity.
v) Unless the contrary can be proved, it is in children's best interests that they maintain significant relationships with both parents, whether they are living together or apart.
It is better for separated parents to agree on arrangements for their children in keeping with these principles. This avoids hostile and potentially expensive court actions. Disputes in court seldom provide satisfactory solutions and may reinforce bitterness between the two parents. They can be upsetting for the adults involved, their extended families and, particularly, the children themselves. It is unrealistic to expect any judge - a stranger to the children - to reach a better decision than one decided by the two people who are closest to them.
Some cases will, however, still be decided in court.
Parental responsibilities and rights
Following changes made in the Family Law (Scotland) Act 2006, regardless of whether the parents are married to one another or not, a child's parents are both given Parental Responsibilities and Rights ( PRRs) if they register the child's birth together, i.e. both of their names appear on the birth certificate.
It is not necessary for both parents to be at the registration office at the time the birth is registered. There are special forms that can be filled in.
For children born in Scotland prior to the changes made by the Family Law (Scotland) Act 2006, if the child's parents were married to each other at the time of the birth or got married later, then both parents were given PRRs. If a child's parents were not married, then only the mother was given PRRs. The changes to the law made by the Family Law (Scotland) Act 2006 will not change that situation.
The father can get PRRs in one of the following ways:
- By marrying the mother.
- By signing and registering a Parental Responsibilities and Rights Agreement ( PRRA) form with the mother. (The mother needs to agree and the form needs to be registered in the Books of Council and Session, a public register kept in Edinburgh). Forms are available from many places including Citizens Advice Bureaux, on the internet at www.scotland.gov.uk/familylaw or by phoning 0131 244 3581.
- By asking the court to give them to him.
Other people with an interest in the child can also apply to the courts for PRPRs, for example step-parents, grandparents, aunts or uncles. When making a decision about a child, the Sheriff will be concerned about what is best for the child not for the adults in the child's life. The Sheriff will ask the child what they would like to happen and will take the child's views into account.
It is important to know if you have PRRs for your children as only those people with PRRs have a legal say in what happens to them.
Where more than one person has PRRs, they don't have to ask each other about everything they want to do but they must agree if one of them wants to take the child away from Scotland (even on holiday). It is expected that people with PRRs will always do what's best for the child.
Relationship breakdown: parents who are married to each other
There are two grounds for divorce in Scotland:
- irretrievable breakdown of the relationship or
- an interim gender recognition certificate has been issued to either spouse (this means that the person has gone through the first stages of legally changing their gender from the one on their birth certificate)
Irretrievable breakdown of the relationship can be proved in 4 ways:
- adultery
- unreasonable behaviour
- living apart for 1 year (where both parties agree to the divorce)
- living apart for 2 years (where one party does not agree to the divorce)
Application must be made to a court. Either the wife or husband can apply to a court, normally it would be to the local Sheriff Court.
Where there are children of the marriage under 16 years of age, the papers presented to the court must include their details and proposed arrangements for their future care. These should include details of whom the children will live with in the future. The papers must include 'affidavits' from two people. (An affidavit is simply a signed, written statement giving evidence to the court.) The affidavits should set out the proposed future arrangements and they should be able to satisfy the court that the children's interests have been safeguarded. Courts are not allowed to grant a divorce unless they are satisfied about this.
Courts now expect that those affidavits will include information not only on the child's residence but also what future contact the children will have with both parents. Affidavits should show how significant relationships with both parents will be maintained.
Courts would be likely to recognise and value highly any affidavit that indicated parents had reached their own agreement. Where a court is satisfied the children's interests are safeguarded and that parents are in agreement, they will simply grant decree of divorce. When parents cannot come to an agreement, one or other of them may apply to the court for an order relating to their child. Such issues can be raised in divorce proceedings.
Relationship breakdown: parents who are not married to each other
When a couple who were not married separate, there is not a legal process to formally end the relationship. If you have children you need to discuss and agree arrangements regarding their future care. When parents cannot come to an agreement, either of them can apply to the court for an order relating to their child.
If parents cannot agree arrangements for their children
If parents can't agree about arrangements for their children, one or other of them may apply to the court. There may be disputes about whom a child should mainly live with, or about the amount of time the child should spend with each parent. Courts would normally appoint an early 'Child Welfare Hearing' where the points at issue can be discussed.
In practice Child Welfare Hearings tend to be quite informal occasions. They are held in private. Though their legal representatives will be present, parties are required to appear personally and participate in the decision making process. Sheriffs will normally try to persuade the two parties to compromise and reach agreement. Sheriffs may appoint an independent person to make inquiries and report to the court to assist early decisions.
If parties are unable to reach agreement, disputes may have to be decided after often lengthy and expensive 'proof hearings' where the parties give spoken evidence and are subject to cross examination.
Where there is a dispute which affects the interests of a child, the law says that the child must be given the chance to say what they want to happen. They don't have to say anything if they don't want to but they must be asked. If they do say what they want to happen, the Sheriff will take what they have said into account when making a decision. When making a decision the most important thing for the Sheriff will be to make sure the arrangements are best for the child, not for the adults in the child's life.
Court decisions on children recognise the possible need for change. Where a parent applies to vary previous decisions, courts normally require that the parent should demonstrate that the change in circumstances was important (or 'material'). The person seeking change would have to satisfy the court that the best interests of the child would be served by altering what had previously been decided. Although ' Parental Agreements' may be new to the courts, they would almost certainly approach them in the same way. Any change would have to be in the best interests of the child.
Contact orders
Where courts are required to and do make decisions, parents must stick by them. These decisions are enforceable. If a parent fails to obey the terms of a Court Order he or she could be held to be in contempt of court and liable for punishment for that contempt.
Chldren at risk
Despite the emphasis on parents reaching decisions for themselves, and the expectation that both parents share equal responsibilities and rights, situations can arise where a responsible parent may need to take steps to protect a child. For example, the current living arrangements for the child might constitute a dangerous or undesirable situation. Similarly, a parent may consider that contact with the other parent might place the child at risk.
There may be concerns about domestic violence, a parent's involvement with alcohol or drugs, or of him or her associating with unsuitable people. There may have been previous ill-treatment of the child or of the other parent. Alternative accommodation which is suggested for the child may be wholly unsuitable for any number of reasons.
A court would consider such allegations carefully and, if necessary, take a decision designed to protect the child, such as by 'interdicting' or forbidding a parent contact. In doing so the court will require to recognise that their paramount consideration is that of the best interests of the child.
Children and the children's hearings system
Where any person has reason to believe that a child may be in need of compulsory measures of supervision, they may refer that case to the Reporter to the Children's Panel. It is not unknown for a parent or other relative who is concerned about a child to do so. The child may then be referred to a Children's Hearing and become the subject of a supervision requirement.
In such a situation the responsibility for making any decision where there are issues about where and with whom a child shall live, and what contact he or she will have with either or both parents, will rest with the Hearing. Any person with parental responsibilities and rights is bound by its terms but may appeal to the Sheriff to have the order reconsidered.
Detailed information on the Children's Hearings System is available from the local Reporter to the Children's Panel or from the Scottish Children's Reporter Administration at Ochil House, Sprinkerse Business Park, Stirling FK7 7XE.
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