When parents separate, one of the most pressing concerns is what happens to the children. In Scotland, residence and contact determine where a child lives and how they maintain relationships with both parents. Understanding the legal framework surrounding residence and contact is crucial for ensuring the best outcome for the child.
How is Residence decided in Scotland?
In Scotland, child residence and contact are governed by the Children (Scotland) Act 1995, which prioritises the welfare of the child above all else. When making decisions, the court considers factors such as:
- The child's wishes, depending on their age and maturity.
- The ability of each parent to meet the child's needs.
- The child’s safety and well-being.
- The importance of maintaining relationships with both parents.
Residence and Contact Orders
When parents cannot agree on arrangements for their child, they may seek court orders to formalise the arrangements:
- Residence Order – Determines which parent the child will live with.
- Contact Order – Establishes how the non-resident parent can maintain a relationship with the child, including visitation rights and other forms of communication.
It is important to note that Scottish law does not automatically favour one parent over the other; decisions are made based on what is in the child’s best interests.
Can grandparents apply for Residence or Contact?
Grandparents often play a crucial role in a child’s life, and in some cases, they may wish to apply for contact or even residence. While grandparents do not have automatic rights to have contact with a child, they can apply to the court if they believe it is in the child’s best interests that the child have contact with them. The court will assess the nature of the relationship and whether ongoing contact would be beneficial for the child’s wellbeing.
Do parents have equal rights?
Both parents have parental responsibilities and rights (PRRs) if they are married at the time of the child’s conception or birth or if the other parent is named on the birth certificate (for births registered after May 2006). This means that both parents have a say in major decisions about the child’s upbringing, including education, healthcare, and religion.
Alternative dispute resolution: Mediation
Mediation is often encouraged as an alternative to court proceedings. This process allows parents to work together, with the help of a trained mediator, to reach an agreement that suits both parties and, most importantly, the child. Mediation can be less stressful and costly than a court battle, and it promotes a cooperative parenting approach. The new family court rules introduced in Scotland in September 2023 mean that parties must consider whether mediation is appropriate and the court can, if appropriate, order that the parties attend mediation.
What if there are concerns about a parent’s ability to care for the child?
In cases where there are concerns about a parent’s ability to provide a safe and stable environment — such as issues of neglect, abuse, or substance misuse — the court may limit or deny contact. The court could order supervised contact. This may mean that contact between the child and parent take place at a contact centre. The priority is always the child’s welfare.
How can d and h help?
At d and h, we understand that child residence and contact disputes can be emotionally and legally challenging. Our team is here to guide you through the process, ensuring that your child's best interests remain the priority. Whether you need legal representation in court or assistance with mediation, we are here to help.
If you require legal advice on divorce and child residence and contact in Scotland, contact d and h today for a confidential consultation.