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Family law

Children

We can give you advice in relation to many aspects of the law in relation to children.  When you are going through a separation, children will experience a huge change to their lives.  They may be living somewhere else; they may have to cope with not seeing both their parents every day; they may need to adapt to a new routine; they are likely to find things emotionally very challenging.  By making your separation as amiable as possible, we can ensure your children are as protected from emotional upset as possible.   

You may be looking for advice about your children in connection with a separation or you may be looking for advice for another reason.  Our team is experienced in all of these areas and can provide you with the best advice possible. 

Residence 

Deciding where and with whom your children will live is a major decision.  Considering what is best for your children and also balancing both your desires and wishes with those of your partner, as well as considering what is possible from a practical point of view is not easy.  There are endless possibilities and we can discuss what would work best for your family, whether that be a shared care routine or something different. 

Should you and your partner not agree what is in the children’s best interests then there are a number of options including mediation, where you and your partner can discuss the issues in a structured meeting led by a highly trained mediator who will help to facilitate those discussions.  If the conflict is too high for this to be possible, or if mediation doesn’t work, then you can ask the Court to grant a residence order. 

Contact 

If you are the mother or father with parental rights and responsibilities of a child who does not live with you then you have the responsibility and the right to remain in contact with them.  Contact includes both spending time with the child as well as contact through more indirect means such as telephone or Skype.  If you and the other parent cannot agree the arrangements for contact, then we can help you.  You may be able to reach an agreement through solicitor negotiation or through mediation.  If you can’t, then you can apply to the Court for a contact order. 

Even if you do not have parental rights and responsibilities, you can still apply to the Court for a contact order.  You would need to show that you have an “interest” in the welfare of the child.  This means that it is not just restricted to parents, but grandparents, siblings and step-parents could also ask for a contact order.   

Grandparents or others who want contact with children 

The breakdown of a relationship can be very difficult for extended family too and sometimes when parents split up the children can lose touch with grandparents, aunts and uncles, or even step-siblings, especially if the other parent moves further away, or if the children no longer have contact with the other parent.  Grandparents and other family members can have a hugely beneficial relationship with children and may even have had regular childcare responsibilities before separation.  The sudden withdrawal of that support and contact can be detrimental. 

Any person who has an “interest” in the welfare of a child can apply to the Court for a contact order.  This means that grandparents can be ordered contact with their grandchildren in certain circumstances, or siblings, or other family members.  Even step-parents can seek a contact order.  If you want to know more about seeking a contact order, then please get in touch with us. 

Parental rights and responsibilities

Parental rights and responsibilities (PRRs) are the rights and responsibilities a parent has in relation to a child.  They are not restricted to the parents of a child, and similarly not all parents have them.  PRRs are used every day by parents without necessarily knowing about it such as by regulating where the child lives and how their health and welfare needs are met.  They only become an issue if you don’t have them or if the holders of PRRs don’t agree how to exercise them. 

Specific issue orders 

Important decisions about a child’s welfare should be made by both parents with parental rights and responsibilities.  Where the parents cannot agree, however, the Court can be asked to make an Order about a particular issue, known as a “Specific Issue Orders”.  The most common are orders allowing a child to move elsewhere in the UK or abroad, orders regulating which school a child goes to, or whether a child should undergo medical treatment, for example. 

We can advise you about all these matters, and what the process involves. 

Relocation

Where a child lives is an important decision for parents to make and will lay the foundation for many other factors in the child’s life such as which school they will attend, how close they are to their other parent with whom they have regular contact, what opportunities are available to the child, what employment prospects are available to the parent with care and so on.  Such important decisions about a child’s welfare should be made by both parents with parental rights and responsibilities.  Where the parents cannot agree, however, the Court can be asked to make an Order for relocation.  It is up to the parent looking to relocate to satisfy the Court that it is in the child’s best interests for the Court to allow the relocation.   

Due to the increasing fluidity of working opportunities, issues involving relocation come up very regularly.  We are experienced in advising parents in this area. 

Child maintenance 

Both parents have an obligation to support their children financially until they reach the age of 25 if they are “reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation”.   

For so long as the child is under the age of 16, or still in non-advanced education, whichever is the later, the Scottish Courts cannot deal with child maintenance.  All applications must go through the Child Maintenance Service (CMS) (which is the successor of the Child Support Agency).  However, parents of children are encouraged (by financial penalties) to reach their own agreements in relation to child maintenance. 

If, following separation, the child lives with one parent more than the other, the parent with whom they live is known as the “resident parent” and the parent with whom they don’t live as the “non-resident parent”.    The non-resident parent is obliged to make payment to the resident parent to financially support the child.  There is a detailed formula which is used to calculate the amount payable.  The amount payable is based on the non-resident parent’s income only, and the resident parent’s income is ignored.  There are various factors which affect the amount payable including how many nights the child stays with the non-resident parent. 

There are many other aspects of “child maintenance” of course which are not dealt with by the CMS.  Who will pay for the child’s private school fees, or swimming lessons, or membership of tennis club?  What if one parent lives abroad?  What support does your child need now they’re at university?  These are all issues which require careful consideration, long-term planning and agreement.  We can advise parents in relation to all of these matters and help them to reach an agreement with their ex partner. 

Child abduction 

As a result of The Hague Convention on the Civil Aspects of International Child Abduction, no person within a country to which this Convention applies is allowed to remove a child from their country of habitual residence without the consent of both parents with parental responsibilities and rights where both those parents are exercising those rights.  To do so is child abduction and the parent left behind can raise an action to have the child returned.  The courts have no regard to the merits of a residence dispute, or whether living in one country would be better for the child than the other, but must return the child to their country of origin.  The principle behind this is that the country of origin is the best forum to make any decisions regarding a child’s welfare.  There are a number of defences to such actions, however, and legal advice requires to be take quickly.   

We are regularly instructed in these cases by both sides and have expertise in dealing with them quickly and efficiently.  These cases must be raised in the highest civil court, the Court of Session, and our offices in Edinburgh are very close by.  We spend a lot of our time in the Court of Session and we are very knowledgeable about the court procedure.  

Surrogacy 

Surrogacy is when someone else carries a baby for a couple who cannot, for whatever reason, carry a baby themselves.  Surrogacy is not illegal in the UK, but it is not enforceable either.  That means that couples are free to enter into a surrogacy arrangement with a “surrogate mother” but if the surrogate mother refuses to hand the child over, she cannot be forced to do so, regardless of whose biological material was used to create the embryo implanted in her.  It is illegal for a surrogate mother to be paid to carry a child, although the surrogate’s reasonable expenses can be compensated for.   

Due to the complexities involved, you must obtain legal advice prior to embarking on surrogacy.  Difficulties arise when the child is born because the legal mother of the child is the person who gives birth to the child and the legal father of the child is the mother’s husband, should she be married.  That is obviously unsatisfactory if the surrogate mother has been asked to carry the child for a couple, who may or may not have provided the eggs and sperm to create the embryo, and the child is to be handed over to that couple.  The prospective parents need to acquire the rights to become the child’s parents.  There is a strict time limit of 6 months for an application to be made, which is not a long time when life will be hectic and new in the first few months of a new baby’s arrival.   

We can advise you in relation to all aspects of surrogacy, and the obtaining of a parental order. 

Adoption 

Adoption is the way in which a person who is not the biological parent of the child can become the child’s parent.  The adoptive parents will have all the rights and responsibilities relating to the child as if they were the child’s birth parents and the rights of the child’s birth parents come to an end.  

We can advise you in relation to the whole process including help with the law and procedures, liaising with adoption agencies, making the appropriate applications to the court.  If the child is a close family member and the adoption isn’t one through an adoption agency (for example step-parent adoption), then we can advise you about these particular rules and procedures too.

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