Published on March 19, 2023

There are many issues which separating parents need to bear in mind under Scots’ Law. This article will address some of the most common queries.

Who has parental rights and responsibilities in respect of a child?

A child’s mother automatically has parental rights and responsibilities (PRR) in respect of a child, regardless of whether or not she has at any time been married to the child’s father. The father of the child will automatically obtain PRR if he was married to the child’s mother at the date of conception or at any time there after.

The father will also obtain these rights if he is registered as the child’s father on the birth certificate – this rule only applies if the registration took place on or after 4 May 2006.

Where a woman is married to, or in a civil partnership with, the child’s mother then she will also automatically have PRR in respect of the child. An application can be made to the court to obtain PRR in respect of a child by any person with an ‘interest’. A genetic or emotional tie to the child would be sufficient to constitute an ‘interest’. Any person with an ‘interest’ in the welfare of the child can also make an application

What are parental rights and responsibilities?

Those with PRR are responsible for promoting the child’s health development and welfare and to provide guidance to the child.

Parents must decide where the child is to live and to ensure that contact is maintained with the non-resident parent. They can also act as the child’s legal representative. It is important that the child’s parents consult with one another in relation to all major decisions affecting the child.

What if there is a dispute in relation to the exercise of parental rights and responsibilities?

Separating parents will often find themselves in dispute in relation to decisions affecting the child. They may, for instance, disagree with each other as to where, and with whom the child should live, how often they see the other parent, and which school they should go to. Although court is generally seen as the last resort, in those circumstances, it may be necessary for a parent to apply to the court to ask the sheriff or Judge to determine the dispute.

In considering whether or not to make an order, the court has to exercise its discretion. The paramount consideration is the welfare of the child and the court ought not to make any order unless it considers that it is necessary and it would be better for the child that the order be made than that none should be made at all. The test is ultimately what is in the best interests of the child.

The court will allow a child to express a view in relation to the matter in dispute. The court must, however, take account of the child’s age and maturity in determining how much weight to give to that view. A child aged 12 or over is presumed to be of sufficient age and maturity to form a view, but consideration can be given to the views of a younger child if the sheriff or Judge is persuaded that they are sufficiently mature.

Courts will generally encourage parents to make decisions about their children. They know their children best after all. If agreement can be reached, this can be documented in a ‘contract’ signed by both parties. Mediation is also often encouraged.

What happens if one parent wishes to move to another country with the child of the relationship?

It is not uncommon for separating parents to disagree about whether a child should be permitted to relocate with the other parent. In those circumstances, it may be necessary for an application to be made to the court for a ‘specific issue order’ permitting such a move in the absence of consent from the other parent.

It is unlawful for a parent to remove a child who lives in Scotland outside of the UKunless there is consent from the other parent or an order from the court. Even if a parent wishes to move to another territorial unit of the UK, it is clear from recent Scottish case law that the appropriate course of action in that situation is for the parent seeking to relocate to seek an order from the court to do so if the other parent will not provide the necessary consent. The matter will require to be litigated in the country where the child is habitually resident, even if the child has already been removed from that country without the other parent’s consent.

In considering whether or not to allow a parent to relocate with a child, the court will have regard to a range of factors, including the arrangements in place for the child at the new location, schooling, accommodation, child care, how contact with the other parent will operate, the family ties that the child is leaving behind and the reasons for the move. The child’s views may also be considered. The court will ultimately need to consider whether the move is in the child’s best interests.

An ‘interdict’ (an order preventing a course of action) can be obtained to prevent a child being removed from Scotland if a parent is concerned that this may take place without their consent.

What if I want to take my child on holiday abroad?

The consent of both parents is required to take a child on holiday abroad. Details ought to be provided of the proposed trip and if consent is not forthcoming, an application can be made to the court for a ‘specific issue order’ regulating this.

Who requires to pay maintenance in respect of a child?

Both parents ought to support their child financially. For the purposes of child maintenance, a ‘child’ means a person under the age of 18 years or a young adult between the age of 18 to 25 who is in full time education.

Therefore, the obligation to maintain a child continues if for instance, they attend university. It is therefore open to an individual who is engaged in further advanced education to raise an action against a parent if they do not consider that they are receiving adequate financial assistance.

Where an individual is under the age of 16, or under the age of 20 (if they satisfy certain conditions, for instance if they remain at school or college) then the Child Maintenance Service can regulate maintenance in the absence of agreement. In calculating maintenance, the Child Maintenance Service will take into account the number of nights that a child stays with the non- resident parent. In certain circumstances, it may be possible to apply to the court for a ‘top up’ of maintenance.

If you require further advice in relation to this, or any other family law issues in Scotland, you should contact a family law solicitor specialising in Scots’ Law. Signposting to additional support and relevant organisations can be found in this link.

Postscript. Issues arising out of divorce or separation can often prove stressful for the couple and other family members. This article written by Dylan Watkins GP offers a useful overview for those who may be struggling.

Rachael Noble contributed to ‘Separating With Children 101′, 3rd edition, (Bath Publishing, 20230

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