Child Law

When things go wrong with the children, it can be scary, and sometimes things can get a bit out of control. If problems with your children have got to the stage of a children’s panel becoming involved, it can seem as if everyone is telling you what to do. Whether you’re a parent or a child, sometimes you need someone on your side, who can listen to you and let you feel you’re doing something to get control of your life back.

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Children – where do I stand?

The primary focus of Scots Law relating to children is the best interests of the children. Everything else is secondary.
Parents have obligations towards their children, for example, to take care of them, build a positive relationship with them, provide for them, and encourage and advise them as they get older.
In order to carry out these duties, parents have rights, but these rights only exist to allow parents to carry out their obligations. For example, if a parent has an obligation to provide a home for a child, then they have to have the right to have the child live with them.
In any separation or divorce (to include dissolution of a civil partnership), questions regarding children normally revolve round residence, contact and specific issues.
Residence means where a child lives. Normally this will be with one parent, but it could be any other person, such as a grandparent, if that is in the child’s best interests.
Contact means time spent with the child. Contact must be in the child’s best interests.
Normally contact is exercised by the parent without residence, but there is nothing to stop another relative asking for and getting contact if that is in the child’s interests.
Contact can be unconditional, or subject to conditions, such as supervision if there are any reasonable concerns regarding safety or good faith.
Contact may be residential (overnight or longer) or non-residential, depending on any agreement reached, or any court order. The over-riding factor, however, is that it is in the child’s best interests. The whole circumstances will be taken into account.
A parent (or other person) with residence is obliged to encourage the child to go along to contact visits. If the court has decided it is in the best interests of the child to have contact with that person, the court is not going to take too kindly to someone taking matters into their own hands, or bad-mouthing the other partner to or in front of the child.
Specific issue orders can be asked for in situations which don’t fit into either of these categories. If, for example, a school has to be picked for the child, and the parents can’t agree, then the court can be asked to decide between the options.
The law looks at what is in the best interests of the child. This isn’t necessarily the same thing as what the child wants. Most children wouldn’t want to go to school if they could possibly avoid it, but parents have to make them go because it’s best for them. It’s a similar idea.
From the age of 12, a child is presumed to be old enough to be able to instruct their own solicitor.
The court can’t make any orders regarding a child in a matrimonial situation if the child is 16 or over. It’s up to them after that. Generally courts don’t really see much point in trying to force ordinary children of about 14 or 15 to do anything regarding residence or contact. Normally the courts feel that, by that age, they should really be making their own choices.
Another area where children can come into contact with the civil law is adoption. Adoption brings the normal parent-child relationship to an end and substitutes a new relationship with the adoptive parents.
Again, the best interests of the child are paramount.
Parents may object to an adoption order being granted. It will depend on the circumstances, but they have to be able to persuade the court that they are not being unreasonable, and that it is in the best interests of the child that the adoption should not be granted.

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Children’s Panels

The Children’s Panel system is unique to Scotland.
It exists to try to help children
- who are involved in anti-social or criminal behaviour
- who have been subjected to criminal behaviour
- who are in danger of harm through abuse or neglect
Before a child’s case can be dealt with by the Panel, a report will go to the Panel Staff, called Reporters.
The Reporter will see whether there are grounds (a basis) for the Panel to deal with the case. If there is, then “grounds of referral” will be sent to all parties – parents and the child, if they are old enough to understand.
If these grounds are agreed, then the Panel will deal with the case.
If the grounds are not agreed, then the matter may have to go to the Sheriff Court to be proved.
If there are some points agreed, but others are disputed, it may be possible to negotiate the grounds. Your solicitor can advise you.
The Panel may make orders about the child, including where the child is to live, and who may have contact with the child. The Social Work Department will be closely involved.
Relevant persons (the parents and any person who has care of the child) are entitled to be present at Panel meetings (unless there are any unusual circumstances) and to put their views and opinions forward to the Panel.
Legal Aid can be available for certain types of panel hearings. It’s up to the Scottish Legal Aid Board whether they allow legal aid for your case or not.
Panel decisions can be appealed on certain limited grounds. Appeals are heard by the Sheriff. There are time limits in place for appeals, and it is important that you speak to your solicitor as soon as possible.