In Scotland, cases regarding child arrangements are heard at the Sheriff Courts. Typically, they are handled separately from divorce cases as it is encouraged for parents to agree on their child’s arrangements without having to go to court. It is understood that a judge believes the parents know what’s best for their child and wouldn’t necessarily want to make decisions on their behalf.
Therefore, if you are trying to settle a dispute with your ex-partner, try to discuss matters by post, email or use family mediation lawyers to try to reach an agreement. This is because court action on family matters can be expensive and often magnify the original dispute through further allegations. However, sometimes disputes can’t be resolved this way and court is the only option.
Our expert family law solicitors have put together this guide on the family court process in Scotland and what you can expect.
What are Parental Rights and Responsibilities?
Parental rights and responsibilities (PRRs) are the fundamental obligations of parenting, which involves safeguarding and promoting children’s health and development and provide direction and guidance. The Children (Scotland) Act specifies these as the rights and responsibilities of parents in Scotland.
A mother who has given birth to the child, automatically has PRRs and a father who is married to the birth mother of a child automatically has PRRs. The Family Law (Scotland) Act 2006 extended PRRs to unmarried fathers for children born after May 2006, but only if the father is noted on the child’s birth certificate.
What is the Family Court Process in Scotland?
Most child contact cases are conducted in the local Sheriff Court and the family court process involves the following:
- Contact our expert family law solicitors, and we will be able to explore the eligible legal aid and various Alternative Dispute Resolution options available to you.
- An application is drafted to the courts which is known as an Initial Writ & Form F9 (if required).
- This form needs to be signed and sent to the Sheriff Clerk for warranting, along with necessary birth certificates and an NID (Notice of Intention to Defend).
Note: If the NID is not lodged by the Defender within 21 days of service on them, the court can grant Decree fit the orders sought, but the Court is unlikely to grant the Order without further information, this is usually provided by way of Affidavit evidence. The Defender has 21 days from the date of service to respond.
- When the NID is lodged by the Defender, the Court with send them or their appointed solicitor a form, which will include all the important dates on it.
- During this time, there is an adjustment period where both parties adjust their pleadings which are sent back and forth between themselves.
- A child welfare hearing will also be scheduled which is usually more than 21 days after the Defences are lodged. A case can have only a few or many child welfare hearings. This varies on a case to case basis.
- An options hearing is also assigned and conducted where the Sheriff decides on one of the following options:
- Continuation – The hearing is continued for a maximum of 28 days.
- Proof – Proof needs to be ‘set down’, which depends on the complexity of the case.
- Debate or Proof Before Answer – These options are unusual in family law cases.
Principles of the Court
It is important to understand that the Court abides by something called the ‘Welfare Principle’, when dealing with cases involving children. The Welfare Principle establishes what is in the child’s best interests and their wellbeing. This is why, during the hearing, the Court must give the child an opportunity to express their views.
The Court takes into consideration the child’s age and maturity, however the child is presumed to be capable of forming their own views, unless the contrary is shown.
A child’s views are taken by the Court via the form F9 or by a child welfare reporter. A child welfare reporter is an independent solicitor appointed by the Court to speak with parties and the child(ren) and prepare a detailed report to the Court which include recommendations on how the case may proceed. The ultimate decision however lies with the Sheriff.
How Long Does it Take to Go Through Family Court?
The family court process involves a number of steps to be taken in any case. Therefore, these can take a long time from start to finish, with a lot of difficult weeks in between. It’s not possible to give an exact timeframe of how long a case may take as it is highly dependent on the individual circumstances and issues to dispute. During the process, if there is any time to negotiate with your ex-partner it is worth considering for a more speedy resolution. This can be achieved via solicitors or by utilising professional mediation.
Contact Our Expert Family Law Solicitors
If going to family court is your only option, you don’t have to go through it alone. Contact our expert family law solicitors who can guide you through the family court process in Scotland and provide legal advice every step of the way.
Get in touch with our expert solicitors at Neil Kilcoyne & Co at the earliest opportunity.