The Care and Custody of Children in Scotland

The care and custody of children is often one of the biggest issues facing couples who have decided to part.

As a general rule whether the parents are married or not is not relevant to the issue of child care.

As a practicing lawyer who has, over the years, been involved with hundreds of family law cases I would always advise parents to make every effort to resolve child care issues between them without having recourse to the courts. it is better to attempt to make provision for child care outwith the court room. Child care disputes are often unpleasant, stressful and destructive.

For most family lawyers one of the greatest areas of concern is where parents use their children as pawns in the battle with their ex-partner. The tactics used are often as predictable as they are depressing. The parent with custody often uses access to the children as a lever to extract concessions from the other parent. No concessions - no contact with the children.

Similarly, child bribery is rife. This involves spoiling children in an attempt to win affection and sometimes even as an attempt to turn them against the other parent. Sadly, even the most even handed of parents can descend into various forms of these tactics at some time or other.

That being said, the Courts and other child care agencies are alert to this type of behaviour and it often cuts little ice with them.

Parents enjoy important rights in the upbringing of their children. A mother always has parental rights. A father automatically has parental rights if he is married to the mother. Otherwise parental rights must be established in Court. Parental rights are only awarded where it is shown to be in the best interests of the child.

Parental rights include the right to decide on all aspects of the welfare and care of the child. Parental rights wither as the child grows in maturity and increasingly is able to make these decisions for himself. Parental rights are not absolute and are limited by the criminal law.

Parental rights therefore do not allow the parent to mistreat the child either physically or psychologically. The law does provide for parents to chastise a child but not to the extent of assault.

The terminology of the law of the child changed a few years ago from custody and access to residence and contact. The terms are different but the meaning remains the same.

Residence is what it means. A person awarded residence order in respect of a child is responsible for the general care and upbringing of the child. A person awarded a contact order is granted access to the child for limited periods. Joint care orders are competent and more than one person can have a contact order.

It is possible for the Court to make a residence or a contact order to a person who is not the child's parents. Typically, this includes Grandparents and close relatives.

The best interests of the child is the over-riding principal in child law. This principle cannot be understated and has been affirmed time and time again by the Courts.

All child care must be planned with a view to the best interests of the child and the Court necessarily take a long view of what is for the best. This includes provisions for care, education, contact with extended family, resources and even when all else is equal religious considerations. The Court must also, where appropriate, take the views of the child into account.

By International Treaty the views of the child are now given due weight in deciding the care arrangements for the child.

In order to do this the Court will usually order a care report to be carried out by a social worker or more commonly an experienced Solicitor. The reporter always speaks to the children except where they are very young and does so outwith the parent's presence. In addition, many judges now take the opportunity to speak to the children in private and the child's views often carry great weight.

In Scotland a child is considered an adult on attaining the age of sixteen. The Court therefore cannot make a contact or residence order in respect of a child after age sixteen. All contact and residence orders cease when the child becomes sixteen. Indeed the law goes further than this and recognises that as children mature they are able to take more responsibility for themselves. A Court would be unlikely to make an order where that child was suitably mature enough and did not want to have contact to the person seeking the order.

The child has a right to separate legal representation if the child wishes in any court action effecting the child's care. legal Aid will often be available for this.