Specific Issue Orders in Scotland

Specific Issue Orders in Scotland

Parental disagreements about significant decisions in a child’s life can be challenging to resolve. When parents cannot agree, a Specific Issue Order under the Children (Scotland) Act 1995 provides a legal solution by allowing the court to decide what is in the child’s best interests.

At Rooney Family Law, we specialise in guiding parents through this process, ensuring that your child’s welfare remains the central focus.

What Is a Specific Issue Order?

A Specific Issue Order is a legal order granted by the court to resolve a particular dispute about a child’s upbringing. It is one of the orders that can be made under Section 11 of the Children (Scotland) Act 1995.

Common Issues Addressed by Specific Issue Orders

•  Education: Disputes over which school the child should attend.
•  Relocation: When one parent wishes to move with the child, either within Scotland or abroad.
  Religious upbringing: Disagreements about the child’s participation in religious practices.
  Medical treatment: Conflicts over significant medical decisions, such as surgery or vaccinations.
•  Change of name: When one parent seeks to change the child’s surname without the other parent’s consent.

Legal Framework Governing Specific Issue Orders

Children (Scotland) Act 1995

  Section 11: Allows the court to make a Specific Issue Order where it is better for the child than making no order at all.
•  Parental Responsibilities and Rights (PRRs): The Act sets out the responsibilities and rights of parents, and a Specific Issue Order can override or clarify these in specific circumstances.

United Nations Convention on the Rights of the Child (UNCRC)

  Article 12: Ensures that the child has the right to express their views on matters affecting them, which the court must consider in age-appropriate cases.

Family Law (Scotland) Act 2006

  Emphasises the importance of both parents playing an active role in the child’s life, subject to the child’s welfare.

Factors Courts Consider in Specific Issue Order Cases

When deciding whether to grant a Specific Issue Order, the court’s paramount consideration is the welfare of the child. Key factors include:

•  The child’s views: If the child is mature enough, their preferences will be taken into account under the Age of Legal Capacity (Scotland) Act 1991.
•  The practicality of the proposed solution: The court will assess how realistic the request is and whether it is in the child’s best interests.
  Impact on the child’s relationship with each parent: The court aims to minimise disruption to existing relationships.
  Any risk of harm: Allegations of abuse or neglect are taken seriously.
•  Continuity and stability: Maintaining a stable environment is often a priority.

 

Case Law Examples

M v M (2008 SC 1)

In this case, the mother applied for a Specific Issue Order to relocate from Scotland to England with her child. The father opposed the move, arguing that it would significantly impact his relationship with the child. The court emphasised that the welfare of the child was the paramount consideration. It found that the relocation would provide the child with better opportunities for education and a more stable living environment due to the mother’s improved employment prospects. While recognising the importance of maintaining a relationship with the father, the court concluded that these benefits outweighed the potential challenges of reduced contact. The mother was granted permission to relocate, with provisions made for regular and meaningful contact with the father.

Fourman v Fourman (1998 SLT 444)

This case involved a dispute where the mother sought to relocate to Australia with her child following the breakdown of her marriage. The father opposed the move, citing concerns over the child losing contact with extended family and friends in Scotland. The court highlighted the importance of taking the child’s views into account, even though the child was under 12 years old. The court ultimately refused the relocation, finding that the mother’s reasons for moving were primarily personal and that the potential disruption to the child’s life and relationships in Scotland outweighed the benefits of the move. The case underscores the principle that the child’s welfare and stability take precedence over the preferences of either parent.

SM v CM (2017 SC 235)

This case concerned a dispute over the choice of school for a child. The parents had separated, and the mother wished for the child to attend a school closer to her residence, while the father advocated for the child to remain in their current school. The court considered factors such as the child’s existing friendships, the potential for disruption in the child’s education, and the practicalities of travel. Ultimately, the court decided in favour of the father’s proposal to maintain continuity in the child’s schooling. The judgment emphasised that decisions regarding education must prioritise the child’s stability and well-being above parental convenience or preference.

Docherty v McGlynn (1983 SC (HL) 1)

This landmark case dealt with a conflict between parents regarding the religious upbringing of their child. The court held that the welfare of the child should take precedence over the rights or wishes of the parents. It was decided that forcing the child to participate in religious practices against their expressed wishes would not be in their best interests. The case established the principle that the court’s primary focus must always be on what is best for the child, rather than the personal beliefs or preferences of the parents.

 

Resolving Disputes Without Court Intervention

Mediation

Mediation can help parents reach an agreement without resorting to court. Services such as Relationships Scotland offer mediation tailored to family disputes.

Collaborative Law

A less adversarial approach where both parents and their solicitors work together to find solutions.

Court Process for Specific Issue Orders

1) Raising Proceedings: The parent seeking the order applies to the court under Section 11 of the Children (Scotland) Act 1995.
2) Child Welfare Hearing: A preliminary hearing where the court explores options to resolve the dispute.
3) Evidence and Decision: If no resolution is reached, the court will hear evidence and make a decision based on the child’s welfare.

Enforcing Specific Issue Orders

Once a Specific Issue Order is granted, both parents must comply. Failure to do so may result in:

•  A return to court for enforcement.
  Penal notices or fines for non-compliance.
•  In extreme cases, contempt of court proceedings.

Practical Advice for Parents

1) Document Your Concerns
•  Keep detailed records of any disputes, communications, and evidence supporting your case.

2) Communicate Openly
•  Try to resolve issues amicably where possible, focusing on the child’s welfare.

3) Seek Legal Advice Early
•  Understanding your rights and obligations can help you navigate the process effectively.

How Rooney Family Law Can Help

At Rooney Family Law, we provide expert advice and representation in Specific Issue Order cases, including:

  Advising on the legal implications of your dispute.
•  Representing you in court proceedings.
•  Negotiating agreements to avoid litigation.
•  Offering mediation and collaborative law services.

Contact Us

If you need assistance with a Specific Issue Order or have any questions about your parental rights, contact Rooney Family Law today. Our team is here to guide you through the process and achieve the best outcome for your child.

 

Get in Touch

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