Shared residence granted, but not equal time. The court declines to impose a fifty-fifty split on parents who cannot co-operate.
Background
The pursuer sought a shared residence order giving him equal time during term, seeking the children from Monday to Wednesday and on alternate weekends, with school holidays split equally. The defender sought sole residence with contact mirroring the interim order of March 2024, and alternatively accepted shared residence reflecting the existing arrangements. The children were aged ten and six.
The legal framework
Section 11(2)(c) of the Children (Scotland) Act 1995 allows a residence order regulating with whom a child is to live, including alternately or periodically. Section 11(7) makes welfare paramount. Section 11(7)(b) requires the child’s views to be taken account of so far as age and maturity allow, and section 11(7D) requires the court to consider whether the persons involved would be able to co-operate on matters affecting the child. Section 2(2) addresses the exercise of parental rights where more than one person holds them. The court also had regard to Article 12 of the UN Convention on the Rights of the Child.
The children’s views
Two child welfare reports were obtained. In the second, the elder child initially said “not really” when asked whether he wanted the arrangements changed, and the younger said “no”. Pressed further, the elder said he would like slightly more time with his father because it would be fairer, and showed awareness of his father’s objectives in the litigation. Both reporters considered that the pursuer had likely discussed his position with the children, and the sheriff gave weight to the children’s initial, spontaneous answers.
The decision
The sheriff granted a shared residence order, but not on an equal basis. In term time the children reside with the pursuer from after school on Wednesday until Thursday morning, and on alternate weekends from Friday after school until six o’clock on Sunday, and with the defender at all other times, with detailed alternating arrangements across the school holidays. A specific issue order regulates foreign travel of up to four weeks a year, on two weeks’ notice for European travel and four weeks for anywhere else.
Both parents were found to be devoted and capable. What was missing was mutual respect, trust and child-centred communication. The sheriff found a pattern of unilateral decision-making on the pursuer’s part and a failure to appreciate the strain that markedly different household regimes place on children. Arrangements in place since March 2024 were working, and extending them would demand a level of co-operation which did not exist. The focus, the sheriff emphasised, is the children’s welfare rather than fairness between the parents.
What it means in practice
Shared residence in Scotland describes the legal status of two homes. It does not mean an equal division of time, and asking for fifty-fifty is not a shortcut to obtaining it. The decisive factor here was the parents’ demonstrated capacity to co-operate.
There is also a warning in the reporters’ finding that the children had been spoken to about the case. Discussing proceedings with a child tends to reduce the weight the court gives to what the child then says. Our pages on residence and specific issue orders explain how these applications run.