Child Contact in Scotland
Ensuring the welfare of children is at the heart of family law in Scotland. Child contact arrangements can often be a contentious aspect of separation or divorce. At Rooney Family Law, we provide expert guidance on contact issues, drawing upon our extensive experience and knowledge of Scottish family law.
What Is Child Contact?
Child contact refers to the arrangements made for the non-resident parent to spend time with their child. Contact can take several forms, including:
• Direct contact: Face-to-face time, such as overnight stays, day visits, or holidays.
• Indirect contact: Communication through phone calls, video calls, letters, or other digital means.
• Supervised contact: Monitored visits in cases where there are safety concerns.
Legal Framework Governing Child Contact
Key Legislation
1) Children (Scotland) Act 1995
• Establishes parental responsibilities and rights (PRRs).
• Section 11 empowers courts to make orders regulating contact, focusing on what is in the child’s best interests.
2) Family Law (Scotland) Act 2006
• Strengthens the principle that both parents should have a meaningful role in a child’s life, subject to the child’s welfare.
3) Children (Equal Protection from Assault) (Scotland) Act 2019
• Prohibits physical punishment, reflecting Scotland’s commitment to the welfare of children.
4) United Nations Convention on the Rights of the Child (UNCRC)
• Emphasises the child’s right to maintain contact with both parents unless it is contrary to their welfare.
Factors Courts Consider in Contact Cases
When making decisions about contact, the courts will consider:
• The child’s welfare: This is the paramount consideration in any decision.
• The child’s views: Under the Age of Legal Capacity (Scotland) Act 1991, children aged 12 or older are presumed to have sufficient maturity to express a view, but younger children’s opinions may also be taken into account.
• Risk of harm: Any history of domestic abuse, neglect, or other risks will be assessed carefully.
• Continuity of relationships: The court may favour arrangements that provide stability, particularly for younger children.
The Role of Mediation
Before resorting to court, mediation is often recommended to resolve contact disputes. Mediation allows parents to reach agreements amicably, reducing the emotional and financial toll of litigation. In Scotland, mediation services such as Relationships Scotland and CALM Scotland play a key role in facilitating discussions.
Advantages of Mediation
• Encourages cooperation between parents.
• Reduces the adversarial nature of contact disputes.
• Focuses on the child’s best interests.
Court Orders for Contact
If parents cannot agree, either party can apply to the court for a Section 11 Order under the Children (Scotland) Act 1995. This may include:
• Contact orders: Regulating the time the non-resident parent spends with the child.
• Residence orders: Determining where the child will live.
Case Law Examples
1) White v White (2001 SC 689)
• Established that the child’s welfare is the overriding consideration in all family law disputes.
2) S v S (2012 SC 43)
• Confirmed that courts must give due weight to the views of children, depending on their age and maturity.
3) Brixey v Lynas (1996 SC (HL) 1)
• Stressed the importance of maintaining continuity in a young child’s care arrangements.
4) Docherty v McGlynn (1983 SC (HL) 1)
• Clarified that a child’s welfare outweighs the rights of parents in contentious disputes.
Common Challenges in Child Contact Cases
1) Allegations of Abuse or Neglect
• If there are allegations of harm, the court may order supervised contact or suspend contact until the matter is resolved.
2) Parental Alienation
• In cases where one parent undermines the relationship between the child and the other parent, the court may intervene to prevent further harm to the child.
3) Non-Compliance with Contact Orders
• Failure to adhere to a court order can result in enforcement proceedings, including penalties for contempt of court.
Enforcing Contact Orders
If a parent fails to comply with a contact order, the other parent can return to court to seek enforcement. Remedies include:
• Revising the terms of the contact order.
• Penal notices or fines against the non-compliant parent.
• Imposing community service or, in extreme cases, imprisonment.
Practical Tips for Parents
- Keep Communication Open
- Aim for civil discussions to reach agreements that benefit your child.
- Document Concerns
- If there are safety issues, keep records of any incidents or communications that support your case.
- Prioritise the Child’s Welfare
- Remember that the court’s focus is on what is best for the child, not the parents.
How Rooney Family Law Can Help
At Rooney Family Law, we offer a range of services tailored to your needs:
• Advising on your legal rights and responsibilities.
• Representing you in court proceedings.
• Drafting legally binding agreements.
• Facilitating negotiations through mediation.
Contact Us
For expert guidance on child contact issues, contact Rooney Family Law today. We are committed to achieving outcomes that prioritise your child’s welfare while protecting your rights as a parent.