The Court of Session and the Sheriff Courts, such as the Sheriff Courts in Glasgow, Paisley or Ayr, in Scotland have the power to make orders in relation to parental rights, that is orders which determine whether a person has parental responsibilities and rights regarding a particular child. Typically this occurs when parents have separated and cannot agree on contact with the child/children. However, there may also be other disputes between other family members such as with a grandparent who may wish contact with a child.
Under Section 1 of the Children (Scotland) Act 1995 (“the Act”) it is a parental responsibility, if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis. This exists only as far as is practicable and is in the interests of the child.
A child is a person under the age of sixteen.
Under Section 1 of the Act the parents have the right to, if the child is not living with the parent, maintain personal relations and direct contact with the child on a regular basis. Similarly to parental responsibilities, this exists only as far as is practicable and in the interests of the child.
Under section 11 of the Act an order may be sought by any person who either has parental responsibilities and parental rights or claims an interest in the child and his or her welfare. The court does not need to wait until it is asked and may decide to make a section 11 order of its own accord.
Under Section 11(2), the court may make an order to regulate the arrangements for maintaining personal relations and direct contact between a child under the age of 16 and a person with whom the child is not living with. The wording is carefully designed to emphasise that the order will not confer an absolute ‘right’ to contact but will rather regulate the arrangements for contact between a child and any other person with whom the child is not living.
This is known as a contact order and is used typically following parental separation to regulate the arrangements for the non-residence parent to see the child on a regular basis. There is no limitation as to who can benefit from this order. It could, for example, regulate contact between a child and their grandparent, sibling, other relative, friend, neighbour or any other person whose continued relationship with the child serves his or her welfare.
The court is given a great deal of flexibility to make an order if it is deemed to be in the interests of the child.
If the court is requested to make a contact order to a child the court will want to establish the child’s views on the order sought. The court take into account, when giving weight to the child’s opinion, the age and maturity of the child. If a child is very young or immature the child may not be in a position to give a view on the order sought. The court may appoint an expert solicitor to safeguard the child’s interest and ascertain, informally, the child’s views.
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