Page 1 SCOTTISH FACTSHEET RESIDENCE AND CONTACT IN SCOTTISH LAW

If your children live in they will be subject to the Scottish legal system. The Parenting Agreement for Scotland was Although the spirit of legislation launched in 2006 with some FNF input. The concerning both divorce and agreement is probably superior to its current arrangements for children are similar English equivalent and is a very good place to England and Wales, the laws to start if you are in the process of splitting themselves in Scotland are not the up and need to know all the things to same and court procedures are consider. significantly different. Even if you are a long way from any kind of BBBASIC INFORMATION agreement with your ex-partner the documents can still be useful in helping you Most of the resources you need to understand focus on the importance of putting the the basics of are available children first. It should help you determine online (all links shortened). The best place to exactly what you disagree about but also start is the website at what you can agree on. Highly http://bit.ly/bSSvpZ There are important recommended reading. nuances and assumptions in the way the information is presented that don’t fully MEDIATION appreciate the difficulties that non resident FNF would always recommend that you try parents may encounter and which Families to reach agreement over the care of your Need Fathers Scotland will address in its children and contact with them. Time, own material. money and energy spent in dispute is The section on Separation and Divorce almost always better spent directly on the gives information for people who were children. However, we know only too well married, in civil partnerships and co- that there is little that the non resident habiting. http://bit.ly/ddokqn parent can do if the parent with care of the The Section on Family Matters: Children children refuses to take part. and Young People includes information on Relationships Scotland oversees local joint birth registration, parental respon- family mediation services throughout the sibilities and rights, collecting maintenance country. http://bit.ly/bN7A8i from abroad, international child abduction, CALM is a network of lawyer mediators. physical punishment and advice http://bit.ly/bolyBP organisations. http://bit.ly/cBIjXO Collaborative Family Law is another A key publication produced by the Scottish option: http://bit.ly/di1PBf Government is the Parenting Agreement for Scotland. A guide to the Parenting Children 1st runs “Family Group Agreement itself is at: http://bit.ly/a0Lr3e. Conferencing” also known as family group Guidance on filling one out is at: http://bit.ly/ meetings. http://bit.ly/cy5MQt (search term bE2uDR “family group conferences”)

FFFAMILIES NEED 39 Broughton Place, Edinburgh EH1 3RR FFFAAATHERS SCOTLAND Tel: 0131 557 2440 [email protected] www.fnfscotland.org.uk Page 2 LEGISLATION House, 153 London Road Edinburgh EH8 The main legislation is the Children 7AU (Scotland) Act 1995 http://bit.ly/9EyyBl A can also draft an s4 agreement - This Act is relatively easy to understand and likely cost £400 + VAT but that should the information relevant to most fathers is include advice and some negotiation with in Section 4 or Section 11. both parties if required. The Family Law (Scotland) Act 2006 If the mother won’t agree, the father has to made some adjustments to the Children apply to the court. There is no template for (Scotland) Act 1995 and other legislation. this. It proceeds with an Initial Writ just like a contact/ residence action. Usually the The Act itself is at http://bit.ly/aJVyuc. application for the Parental Rights and There’s a useful accompanying guide to Responsibilities order is included in the what it has changed at http://bit.ly/cTa9Lg contact/residence writ, so if a father is If you want more guidance, there are many paying for a contact/ residence writ it won’t books available. Contact the FNF Scotland cost any more to add in the application as office on 0131 557 2440 for suggestions. a supplementary “crave”.

UNMARRIED FAAATHERS Even where you have no parental rights and responsibilities because you are not named Since 4th May 2006, the law in regard to on the birth certificate and the birth was unmarried fathers became the same as in before 2006 you should not be put off England and Wales (where the change took pursuing contact or residence. The fact that place in December 2003). That is, if you the law has been changed allows such are named on a UK birth certificate then fathers to submit that their situation is out you have equal parental rights and of kilter with current law and thinking and responsibilities with the mother unless there needs to be specific reasons in the specifically deprived of them by a court interest of the child for an application to be order. Note that if the birth was registered refused. in an overseas jurisdiction this does not apply and you still have no rights by default. COURTS AND COURT PROCEDURE If you aren’t named on the birth certificate, or Most family law actions in Scotland are even if you are but your child was registered heard in Courts though it is also before 4th May 2006, you have no rights but possible to raise an action directly in the can still obtain them by formal agreement (the higher civil court). with the mother or by Court Order. The costs of proceeding in the Court of The agreement is provided for by s4 of the Session are much higher than in a sheriff Children (Scotland) Act 1995. There is a court and the won’t useful description at http://bit.ly/dvPx2Y. It fund it unless there is an unusual aspect to spells out the obligation of the mother to the case. consider the best interests of the child in More detailed information about the Courts the matter. A pro forma can be obtained by in Scotland is available from the Scottish ringing 0131 244 3581 or from FNF Courts website http://bit.ly/bSRNkz. This Scotland, includes the full text of the court rules If the parties can agree to sign, legal advice ( Ordinary Cause Rules, in won’t be required and there will be no cost most cases). apart from a registration fee of about £20. Be warned, the rules and forms are The agreement should be lodged with The complex. The actual document that you will Keeper of the , Books serve on the mother and which will form the of Council and Session, Meadowbank basis of your application is called a writ.

FFFAMILIES NEED 39 Broughton Place, Edinburgh EH1 3RR FFFAAATHERS SCOTLAND Tel: 0131 557 2440 [email protected] www.fnfscotland.org.uk Page 3 You will have to set out accurate details of And remember children get older and yourself, your former partner and the change the way they organise their own children; the details of their birth; the lives so it is useful for you to demonstrate relationship between the parents; where you are aware of the need to build in everyone lives and much more. These are flexibility in their interest. called averments. HEARINGS and PROOF However, the writ has to spell out the grounds in law that underpin the It often happens that the appearance of a application. It is crucial that the writ is writ and the prospect of going to court can complete and accurate. help both you and your former partner focus on the children rather than your feelings If your application is opposed the other side about each other. You still have the option is entitled to challenge the facts and the of reaching your own agreement which can legal arguments you have presented. Unlike be formalised in a Minute of Agreement in England and Wales there isn’t a pro that can be drawn up by a solicitor and forma template for all this. Just reading the lodged with the court. rules does not in itself explain how to use them. You will need advice either from a However, if you still can’t reach agreement, solicitor or from other FNF members who the next stage will be an appearance in have been there before you. court in front of a Sheriff. That is likely to be a Child Welfare Hearing (CWH), held It is distressing and expensive to have in private, which all parties have to attend several sets of questions and responses including the children if they wish to and flying back and forward. It is better to spend are old enough. Many fathers may be the time on getting it right first time. worried about “dragging their kids into court” It is also important to assemble all your or being criticised by their former partner supporting - but relevant – evidence to go for doing so. In fact, it has become an with your initial writ such as evidence of the unwritten rule that children are seldom contact/care you customarily had with your brought to a Child Welfare Hearing now, children; a record of the genuine efforts you and never to the first one. made to try mediation; the contacts you The Sheriff has very wide powers to make have had with school or after-school any interim order (“interlocutor”) that is activities with your children. felt necessary for the children’s welfare. At this stage everything is in writing so you If the child wishes to have input, s/he can want the record to be complete and complete the F9 Form which the Sheriff accurate. You don’t want to find that when retains as confidential, and can instruct a you get to the next stage - a hearing in front solicitor to appear for him/her if need be. of a sheriff – you and your former partner Legal Aid is usually available where children waste time and the court’s patience arguing are represented in their own right. Even about minute detail. The court, if you have then they need not appear in person. to go there, is for the bigger picture. In Scotland a child of 12 is presumed to Keep in mind that you should be sure that have “capacity” when it comes to you will be able to sustain the contact for instructing a solicitor to represent his/her which you are applying, all the way up to views. Some children over 12 may not be shared parenting. Apart from the damage thought mature enough to understand the it might do to the children if you are the one implications of what is happening. A child who breaks arrangements, it might younger that 12 may be demonstrably undermine your credibility in court if you can mature. It will be up to the solicitor to judge be accused of being unreliable. that.

FFFAMILIES NEED 39 Broughton Place, Edinburgh EH1 3RR FFFAAATHERS SCOTLAND Tel: 0131 557 2440 [email protected] www.fnfscotland.org.uk Page 4 The solicitor should always obtain ENFORCEMENT OF ORDERS instructions and speak to the child outwith If a contact order is obtained but then the presence of this parent. In court the broken by the parent with care, you can ask views of a child communicated via a solicitor the court to enforce it. will be difficult to overcome. However in Scotland the only sanction The court process then focuses on finding available to the court is to fine or imprison out the exact nature of what is in dispute, the parent who has broken the order. so there will be an exchange of paperwork Options such as community service, (Pleadings) which become the agreed currently available in England, do not apply Record of what is accepted and what is in Scotland. The court is unlikely to either disputed. This forms the basis for the final fine or imprison. It would regard either hearing, which is the “Proof”. punishment as being contrary to the There is at present no explicit presumption children’s welfare. of “shared parenting” in Scotland so you will The parent breaching the order can be have to introduce it in your pleadings if that admonished to comply or a punitive is what you are aiming for. It will be very sentence can handed down but deferred to difficult to introduce anything at the Proof keep an eye on compliance. The threat of that is not in the agreed Record so think further action is sometimes enough to carefully about what you can realistically discourage breaches of an order. offer. You can consider making an application for Keep in mind that the judge will place the a finding of Contempt of Court but the interests of the child/children above reality is that that will be expensive and the everything else and will want to be outcome unpredictable and you have to reassured that this is your priority as well, calculate whether it might make relations rather than scoring points against your between you even worse. partner. Even in the court itself the parties are generally encouraged to reach This procedure is done by Minute - a type agreement. The court may be adjourned to of writ. The costs will depend upon the give them time to work something out. The procedure which is followed after the Minute Sheriff will make decisions if no agreement is booked and served. If you use a solicitor can be reached but will usually point out the cost of the Minute itself will probably that is likely to be the least satisfactory be about £500 which is likely to include outcome of all. meetings to obtain detailed instructions. Even if you try to do it yourself there will be There is scope for other hearings in outlay costs including court fees and the between, to deal with procedural matters expense of serving it on your former partner and so on. Cases often trundle on for who may dispute the facts. You will need months and years from Child Welfare very robust evidence that the contact order Hearing to Child Welfare Hearing. This was breached wilfully by your former increases the cost of the whole process and partner. can feel very hurtful to the parent who feels The outcome is most likely to be that the his commitment or reliability is somehow on sheriff will call another child welfare trial with contact being monitored and hearing. incrementally increased. Various measures to tackle this problem of Sometimes it can work well with both parties breaching a contact order have been conscious that the court is keeping an eye suggested, but it remains an area of on them and it can help the children build considerable difficulty. If you are in this up their confidence in the normality of position FNF would like to hear about it, as having contact with both parents.

FFFAMILIES NEED 39 Broughton Place, Edinburgh EH1 3RR FFFAAATHERS SCOTLAND Tel: 0131 557 2440 [email protected] www.fnfscotland.org.uk Page 5 you may be able to help us add strength to only. They may not recommend contact the argument we make to the Scottish pending Proof. While this can be Parliament for better enforcement. discouraging you should not throw in the towel. It is the court’s role following the COURT REPORTS Proof to make findings of fact and decide If you are used to the English Legal System, who is telling the truth when allegations and or you have read lots of other pages on the counter allegations are flying around. Even FNF website or FNF publications aimed at if a report is unsupportive at the first England, the most fundamental difference instance it doesn’t necessarily follow that you would encounter in Scotland is that the court will take the same view after you CAFCASS, (Children and Family Court and your former partner have had a chance Advisory and Support Service) does not to put your case to the sheriff in person. operate in Scotland. CAFCASS is the agency established in 2001 to bring LEGAL REPRESENTAAATION together the various organizations If you are faced with litigation over your concerned with legal protection of children children you will naturally consider legal in England and Wales. representation. Even if you intend to head In Scotland, if a court calls for a child straight for the Court of Session you will welfare report, it will appoint a Bar Reporter need to find a solicitor first. and who will most likely be a solicitor, Solicitor Advocates in the Court of Session or with experience of have to be “instructed” by a solicitor. FNF family law. It might also be a social worker, is not in a position to represent you or to particularly if there has been previous social recommend a solicitor. One person’s work involvement with the children in experience with a particular solicitor can be question. The report has to be paid for by wildly different to another’s. However, you the parents as part of the legal expenses. can find lawyers through the of Scotland web pages. http://bit.ly/ Some reporters limit themselves to b1DPsE. interlocutor - the instructions of the court - and will investigate and report back in There is a separate Association of Family those terms. Others are more flexible and Lawyers http://bit.ly/d9r1Pc. Unfortunately, may try to engage with the parties in trying not all of its members take on legally aided to help reach a settlement in the same way work. Similarly the Scottish Legal Aid Board that English CAFCASS officers might. website http://bit.ly/9ixTXZ lists lawyers across Scotland who do legal aid but some The reporter is formally ‘independent’ and of them have their own ceiling on the will report on the best interests of the child amount of legal aid work they do. and his or her word will carry a great deal of weight with the judge. While some FNF’s general guidance, contained in the reporters are utterly professional and publication “Choosing and Using a rigorous some FNF members have reported Solicitor”, is applicable in Scotland. If you that they have been made to feel defensive join FNF, our members’ network will be able and undermined by the manner in which to give you more “local knowledge”. We are questions are asked and the assumptions also aware of who are prepared behind them. If you have an interview to assist people representing themselves. scheduled it may be worth talking through Many firms will not do this and will only act the issues in advance with your lawyer or if they get to run the whole case. with other FNF members. You should remember that in general Bar Reporters have input at a very early stage

FFFAMILIES NEED 39 Broughton Place, Edinburgh EH1 3RR FFFAAATHERS SCOTLAND Tel: 0131 557 2440 [email protected] www.fnfscotland.org.uk Page 6 REPRESENTING YYYOURSELF and There is a brief Guide for Party Litigants in MCKENZIE FRIENDS/LAYYY the Court of Session (the higher civil court) ASSISTANTS on the Scottish Courts Website under You are entitled to represent yourself in “Raising Actions in the Supreme Courts”: Scotland, just as you are anywhere else in http://bit.ly/9RtZo4 the UK, and FNF members in Scotland have FNF Scotland has published a guide to successfully done so. Procedures are quite representing yourself in the Scottish family complex however (much more so than in courts - see http://bit.ly/jwEJhN. England) so it is not an easy task even though the law regarding child residence LEGAL EXPENSES and contact remains essentially simple. FNF is often asked “how much will my case You should only consider representing cost?” In Scotland, just as anywhere else, yourself if you are reasonably confident and this depends on the complexity of the case. articulate and are able to detach yourself Only one thing is clear - it will not be cheap. sufficiently from the emotions involved. If You will incur costs in fees if you use a you do not meet these criteria you may solicitor as well as court costs and outlays. make matters worse, not better, Typical costs could range from £3,000 for If you cannot afford legal representation you cases resolved with solicitors’ certainly need to get as much help as you correspondence and formal agreement only can from others by joining FNF. to £6000-£8000 for the simpler court cases. Many members have spent much much The status of “Lay Assistants” is changing more. Legal Aid is available for all matters significantly at the time of writing. As of June of and almost every type of 2010 the rules of the Court of Session were procedure is covered. Financial eligibility changed to recognize the role of a ‘lay has improved so even if you think you may assistant’. That is, the term McKenzie not be eligible, it is worth being formally Friend has been rejected in Scotland but assessed by a solicitor or use the eligibility the role has become accepted. There are calculator on the Scottish Legal Aid website. some application procedures that have to be completed in advance and, unlike in There are two types of Legal Aid. ‘Advice England, a fee of £45 has to be paid. The and Assistance’ covers all work except full details are online at http://bit.ly/b580ZW court representation. ‘Civil Legal Aid’ covers court work, including Bar Reporters’ Only a minority of family law and child fees. The financial eligibility criteria for each contact cases will be dealt with in the Court type is different. Most solicitors will offer an of Session. The Sheriff Courts Rules initial appointment free of charge and will Council are currently considering adopting be able to assess eligibility at that time. similar recognition and procedures for ‘lay assistants’ in the Sheriff courts. We will Recent changes in Legal Aid eligibility update advice when the outcome becomes criteria in Scotland (not England) have clear. increased the proportion of the population who may qualify for some assistance but If you are refused a lay assistant/McKenzie at higher income levels it becomes friend, FNF Scotland would be keen to work effectively a loan for the duration of the with you to establish this right. Note case. however that at the time of writing we do not, in Scotland, have a supply of The contribution you will have to make as experienced lay assistants, though we may assessed at the outset is not connected to be able to find someone willing to help you. the cost of the case but rather the sum the Board calculates you can afford in terms of its criteria. If the case costs more than the

FFFAMILIES NEED 39 Broughton Place, Edinburgh EH1 3RR FFFAAATHERS SCOTLAND Tel: 0131 557 2440 [email protected] www.fnfscotland.org.uk Page 7 contribution then you pay only the con- regarding a child is received. The Children’s tribution. The major benefit is that it allows Reporter will not determine disputed facts you some certainty about what you may have however. If you and your ex-partner disagree to fund at the outset. If the case costs less in about some matter of fact, it will be remitted the end then you need only pay for the work to the Sheriff Court for the judge to rule on actually carried out. what s/he considers to be the truth. That will Costs can be awarded against the losing be a ‘finding in fact and law’. party but this is rare in family cases, Findings from the Children’s Hearings can’t especially those involving children. Usually be cited in private family law cases but they the parties are expected to pay their own might be relevant, for example, if there costs. The exceptions are where the sheriff appears to be serious deliberate parental feels one party has acted improperly, alienation going on. This is new territory and frivolously or in bad faith. FNF Scotland would love to receive Of course, many fathers regard the costs feedback from anyone using this system of pursuing contact is money that is not CSA, C-MEC AND CHILD available to assist them sustain the contact MAINTENANCE they achieve with their children. These matters are not devolved to the CASE LAWWW Scottish administration and all the relevant Scots Law is in part a common law-based information is contained elsewhere. There system, which means that judgements are are slight variations in Scotland relating to often based on precedents set in previous enforcement procedures and to the cases, particularly where the previous cases possibility of children of 12 and over have been appealed to the higher courts. seeking maintenance themselves. Appeal decisions create binding precedents CROSS-BORDER ISSUES which can be difficult to overturn. Cases Removal of children from Scotland outwith from other jurisdictions where the law is the UK is covered by the Hague similar (such as England and Wales) may Convention (see elsewhere on the FNF be highly persuasive in some cases, but are web pages). This does not cover the far not binding. Most of the case law quoted in more common cases of removal from FNF publications and on the FNF website Scotland to England, Wales or Northern is English case law, so is not necessarily Ireland, or vice-versa. So, for example, if applicable in Scotland. your ex-partner takes the children to The Scottish Courts Website has a England you are likely to have to go through searchable database of court judgments the English legal system to get court orders, that might possibly be useful. Otherwise, unless proceedings are already under way Scots cases tend to be published in the in Scotland before the removal. You can ask same places as English ones any UK court to return the children to their place of habitual residence. CHILDREN’S HEARINGS CHILDREN’S HEARINGS In some cases the period within which you Scotland has a unique system of need to raise an action can be up to a year. Children’s Hearings, designed to deal with However, it is better to get proceedings children in need of some form of under way as soon as possible and ideally compulsory supervision but based on within a few days. See s41 of the Family looking after the welfare of the children Law Act 1986 for details of the one year involved. provision. http://bit.ly/bBCtLw Each area has a Children’s Reporter with a If you obtain an order such as for parental wide remit to investigate when information rights, residence or contact, you can

FFFAMILIES NEED 39 Broughton Place, Edinburgh EH1 3RR FFFAAATHERS SCOTLAND Tel: 0131 557 2440 [email protected] www.fnfscotland.org.uk Page 8 register them in the other jurisdiction under your child has the right to consult a medical Section 27 of the Family Law Act 1986. practitioner in confidence - if he/she is under You need the permission of the court making 16, he/she also has the right to consent to the order. That is best obtained at the time his/her own medical, surgical, dental the order is made though a lot of judges do treatment or examination if the qualified not seem to understand this and may be medical practitioner believes he/she is confused by your asking. capable of understanding the nature and possible consequences of the treatment or In theory, this system allows the order to be examination enforced anywhere in the UK, but of course enforcement is a notoriously difficult area in your child has the right to instruct a solicitor any of the UK jurisdictions. in any civil matter where he/she has a general understanding of what it means to do so Children removed to Scotland become subject to the Scottish courts after the May 2011 relevant period and Scottish social work departments. Experience has shown that this can result in a “right back to square one” approach, with previous social work reports, etc, often not accepted and having to be done again. In the heat of dispute it is possible to lose sight of the fact that it is the welfare of the children that is paramount. FNF Scotland is clear that the weight of evidence is that This guide is published by FAMILIES NEED children thrive best when they have a FATHERS SCOTLAND - see stable, supportive and loving relationship www.fnfscotland.org.uk for updates and further information. with both parents and their extended families. Local FNFevening meetings take place in Edinburgh on the first Monday, Glasgow on It is important to understand your the third Monday and Aberdeen on the third responsibilities and rights as a parent in Thursday of each month, see web site for relation to the rights of your child: details and new meetings in other parts of Scotland. your child has the right to have her/his best interests as the most important The FNF helpline is available from Monday to consideration in any decision you take Friday, 6pm to 10pm on 0300 0300 726 which affects her/him Membership of FNF supports our work - members receive McKenzie magazine and your child has the right not to be subject access to an online forum and publications. to any Court Order or requirement from the Children’s Hearing unless this would be Call 020 7813 5060 or join online at better for the child than no order at all www.fnf.org.uk

your child has the right to a say in any With funding from the Equality & Human major decision which affects her/him and Rights Commission you should take his/her views into account the Children (Scotland) Act states all children should have the right to express FAMILIES NEED FATHERS a view and specifically that children over The UK’s leading Shared Parenting charity 134 Curtain Road, London EC2A 3AR 12 should be assumed old enough to form a Charity No. 276899 Company No. 1396139 view

FFFAMILIES NEED 39 Broughton Place, Edinburgh EH1 3RR FFFAAATHERS SCOTLAND Tel: 0131 557 2440 [email protected] www.fnfscotland.org.uk