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This handbook was prepared to describe how public and private family law cases are handled in England, Wales and Scotland. It’s a useful guide to the different systems, although you should also check for any changes which have taken place since it was published in 2018.
The 1995 Children (Scotland) Act says that the court should allow a child to express views and have regard to them as far as possible. It also says that the court should take account if the child’s age and maturity and that “a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view” (section 6).
The 2020 Children (Scotland) Act removes this mention of age 12. Although that legislation hadn’t been enacted at February 2024 the court will now consider the views of much younger children. Whatever the age, the views of a child are not the deciding factor, although the older the child the more impact their views will have on the final decision.
Court
Sometimes a father needs to prove or disprove paternity in a court case regarding contact with or maintenance of with a child. Although the court cannot force someone to provide a blood sample, a request can be made under Section 70 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. If a parent refuse to provide a sample of their blood or blood of their child, the court can draw an inference from this refusal and conclude that paternity is either established or denied, depending on the circumstances.
Parents who are involved in a family court case should always be allowed to attend Child Welfare Hearings unless the Sheriff has decided that this should not happen. Ordinary Cause Rule 33.22A (5) states that “All parties (including a child who has indicated his wish to attend) shall, except on cause shown, attend the Child Welfare Hearing personally.”
This was not possible in the early stage of lockdown due to restrictions in the telephone conferences used to conduct child welfare hearings, but now that all sheriff courts are using Webex video conferencing there should not be any problems in parents attending. In our response to the recent consultation on future online and face-to-face court hearings we stressed that family case court hearings should all return to face-to-face in court unless the hearing is only to conduct procedural business.
Some types of child vaccination such as MMR have attracted opposition, and this is also happening with Coronavirus vaccines for children. If parents don’t agree whether a child should be vaccinated, the matter can be raised in court. The matter becomes more complicated if only the mother has parental rights and responsibilities or if a child is in care of the local authority. A recent English court judgement endorses the wisdom and efficacy of vaccination and places the onus on the parent who opposes vaccination to raise court action to stop the vaccination – see this roundup article for more background. A more recent English judgment applies this to Covid vaccination
Scottish courts are only hearing urgent child protection cases at the moment, so almost all family court hearings are paused (sisted) or postponed (continued). In each part of Scotland all cases have been moved to a few key courts – details here.
At present there are various ways for obtaining children’s views during a dispute about contact. The court can issue an form-f09 for children to indicate their views. The sheriff can talk to a child or order a Child Welfare Reporter to prepare a report to court. The legislation that is being currently considered by the Scottish Parliament will include consideration of a range of other ways in which children can give their views and also whether feedback can be given to them about what the court decides. Shared Parenting Scotland considers that it is also very important to let the child know that their views are important but will not be the deciding factor, and also that any person who is obtaining children’s views should properly trained. If the Scottish Parliament also incorporates the UN Convention on the Rights of the Child into Scottish law there may be further changes.
Proof hearings, in which both sides present evidence in support of their case, only happen in a small proportion of family court cases, when agreement cannot be reached. Obtaining sworn affidavits from your witnesses and ensuring that all relevant information is lodged with the court are important parts of the preparation. If you are representing yourself you need to prepare questions for witnesses. Our guide to representing yourself in the family court covers this topic in more detail.
Married parents with children under 16 have to include consideration of arrangements for their children if they are divorcing or dissolving a civil partnership. Try to reach agreement about these arrangements, using the parenting agreement guidelines. Family mediation will help you reach this agreement, but if you still can’t agree it may be necessary to go to court.
Failing to make children available for court ordered contact might lead to a finding of contempt of court, but this penalty isn’t likely after only one or two occasions – see our article on this topic here.
Start by asking calmly and politely why the children cannot come this time, and if the other parent uses this as an opportunity to create a fuss or complain about you then just stop the conversation or walk away. It doesn’t help your children if they see their parents arguing. Arguments on the doorstep often result in one person being arrested, usually the person who has obtained the court order.
Keep a careful note of all that happens on these occasions, and seek advice from your lawyer about what can be done.
Community disclosure enables parents, carers or guardians of children under 18 years old to make a formal request for the disclosure of information about a named person who may have contact with their child if they are concerned that he or she might be a registered child sexual offender. The process is described here.
A court judgement can only be appealed if you can show that a legal mistake has been made in reaching the original decision. You cannot just go back over the issues in the case. It is important to act quickly as there is only a short time available to make an appeal.
The 1995 Children (Scotland) Act says that the court should allow a child to express views and have regard to them as far as possible. It also says that the court should take account if the child’s age and maturity and that “a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view” (section 6).
The 2020 Children (Scotland) Act removes this mention of age 12. Although that legislation hadn’t been enacted at February 2024 the court will now consider the views of much younger children. Whatever the age, the views of a child are not the deciding factor, although the older the child the more impact their views will have on the final decision.
You call the sheriff “My Lady” or “My Lord”. The other thing that you have to do in court is to stand up when the sheriff enters at the start and also when he or she leaves the end of the hearing. A court official will say “Court Rise” when this is due to happen. In theory you should stand up when saying things to the court, but in many child welfare hearings the sheriff will indicate that this does not need to happen. Don’t worry too much if you don’t always manage to do these things, as long as you can show that you are taking the court seriously and showing respect. Remember also that the sheriff can see your facial expressions very clearly, so don’t react with grimaces or shaking your head when things are said that you don’t agree with. (Most family cases are heard in the Sheriff Court, but the same applies to Court of Session hearings.)
If your court action requests time with your child at Christmas remember that the sheriff will only consider the childrens feelings, not yours. Some sheriffs will agree to splitting the day between parents, whereas others are more likely to agree to let you have them on Christmas day on alternate years. You might even come up against a very old-fashioned sheriff who feels that children should be with their mother at Christmas. Your lawyer should know what the local sheriff are like. Try asking for what you think is reasonable but be prepared to back down quickly if there is resistance – if you can show you are being reasonable and willing to negotiate that will strengthen your case. See the factsheet on Christmas.
Wear a suit if you have one or at least a shirt and tie and smart trousers (not shorts even if it is hot). Women should also dress in smart or businesslike clothes. Although there are no rules about what to wear it is far better to show you are respecting the court and the importance of the hearing by dressing in this way. Remember that you will be under the radar from the moment you step into the court room so don’t make gestures or faces when the other side says something provocative – just keep calm and try to relax.
The form that is submitted to court to start a case is called a writ. Subsequent court forms are called “motions” or “minutes to vary”. The initial writ consists of a note of what you are asking the court to decide (craves), background to why this is necessary (condescendence) and a statement of which laws you are using to make this request (pleas in law). See our guide to representing yourself {LINK}.
Look on your local council web site to see if they run any suitable classes, or try contacting organisations like Parent Network Scotland or Mellow Parenting. A Google search should show up smaller local organisations in your area. You may find that some classes say that they are only for parents who have contact with their child – try politely and firmly to persuade them that you need the training to help resume contact.