Hearing children in court disputes between parents

The Children (Scotland) Act 1995 gives children the right to have their views taken into account when their parents take a dispute over the child to court. This is consistent with Article 12 of the United Nations Convention of the Rights of the Child (UNCRC). The most common dispute concerning children which comes before the court is over the amount of contact a child should have with the non-resident parent. This briefing reports key findings from a recent study that examined court cases affecting just under 300 children. The research found that the majority of children do not have their views taken into consideration as part of the court process. When children’s views are heard, many struggle to be taken seriously if they do not wish to see their non-resident parent because of the conflict their decision has with the court’s assumption that contact with both parents is the best outcome for the child

Voice of the child in private law contact disputes in Scotland

This thesis that is supported by the research findings is as follows: In private law contact disputes between parents, greater weight should be attached to the statutory requirement to give children an opportunity to express their views, as well as to the statutory requirement to protect them from abuse, rather than assuming on-going contact with a both parents is essential for the promotion of a child’s welfare. Despite the acquisition of rights by women and children since the late 19th century, it is argued, they remain disempowered within private law legal process as the patria potestas (paternal power) once held by married fathers, has evolved into this assumption that a child’s welfare requires direct, regular contact with his or her biological father – whether the child wants this or not. Consequently, where children’s views are taken, but they express a view contrary to on-going contact with their biological father, their wishes are often overridden and they may be forced by the court into contact arrangements that distress them. This is particularly problematic as the majority of cases coming before the courts involve serious welfare concerns (including domestic violence and the abuse of substances) and children often have lucid reasons for not wishing to be left under the care and control of their non-resident parent. Yet, these children may sometimes be further victimised by the court system charged with their protection

Legally binding agreements: property division and child care when relationships break down

In Scotland, couples are able to enter into a written agreement regulating the division of their property and any ongoing support for each other, or for their children, when they separate. These ‘minutes of agreement’ mean individuals do not have to go to court. They may register their signed agreement in the Books of Council and Session where it becomes a legally binding agreement with the same force as a court order. Spouses wishing to divorce still have to obtain a divorce decree from the court, but the court is under no obligation to review the content of the minutes of agreement about property at that point. Usually people only become aware they can reach agreement over their property in this way after consulting solicitors who advise their client what their rights are, based on the provisions of the Family Law (Scotland) Act 1985