Scottish Law

 

If your children live in Scotland then they will be subject to the Scottish legal system.

The Scottish statute law relating to children is substantially similar (but not identical) to that in England. However, divorce law is different, legal procedures are very different, and different case law applies.

Basic Information about Family Law in Scotland

Most of the resources you would need to understand the basics of Scots family law are available online. The best place to start is the Scottish Executive web site at www.scotland.gov.uk/familylaw . On the left of this screen is a link to “Publications” where you can obtain a range of booklets and leaflets explaining the issues, including some aimed at children. There is also, under the Publications section, a link to “Further advice and information” which details a range of other organizations (including FNF) which might be able to help in various contexts (the Executive’s website is not set up to allow us to give direct links to its component parts).

Parenting Agreement for Scotland

The Executives “Publications” link (see above) also leads you to the Parenting Agreement for Scotland, which was launched in 2006 and into which FNF had some input. The agreement is probably superior to its English equivalent and is a very good place to start if you are thinking of splitting up and need to know all the things to consider. Even if you are a long way from any kind of agreement with your ex, the documents can still be useful as a focus on putting the children first, and helping you determine exactly what you disagree about and what you don’t. Highly recommended reading.

Mediation

FNF would always recommend that you try to reach agreement over children. Time and energy spent in dispute would always be better spent directly on the children. However, we know only too well that “it takes two to tango.” There are however a wide range of mediation services available throughout Scotland, many of which can be accessed via the Scottish Executive’s links to “Further advice and information” discussed under Basic Information above.

Family Mediation Scotland oversee local mediation services throughout the country and Children 1^st (which was formerly the SSPCC) run “Family Group Conferencing” which is an excellent service in many cases.

Legislation

The main legislation is the Children (Scotland) Act 1995 and the Family Law (Scotland) Act 2006 . The first is relatively easy to understand and most of the information relevant to most fathers will be in Section 4 or Section 11. The second makes adjustments to the first and other legislation and is thus quite hard to read without constantly referring to what it was altering.

If you want more guidance, there are many books available. The following are among those covering the most recent changes and may be helpful:

 

Kenneth McK Norrie

The Family Law (Scotland) Act 2006 – Text and Commentary

Dundee University Press

 

Kenneth McK Norrie

Family Law (Law Essentials) (Scots Law Essentials)

Dundee University Press

 

These books are essentially student texts and are relatively cheap. Many Scots law books are expensive and difficult for the non-specialist to use effectively.

Unmarried Fathers

Since 4^th May 2006, the law in regard to unmarried fathers is the same as in England and Wales, ie if you are named on a UK birth certificate then you have equal Parental Rights and Responsibilities with the mother. Note that if the birth was registered in an overseas jurisdiction, this does not apply, and you still have no rights by default. If you aren’t so named, or even if you are, but your child was registered before 4^th May 2006, you have no rights but can still obtain them by agreement or Court Order.

Courts and Court Procedure

Most family law actions in Scotland are heard in Sheriff Courts, though it is also possible to raise actions directly in the Court of Session (the higher civil court).

More detailed information about the Courts in Scotland is available from the Scottish Courts website www.scotcourts.gov.uk . This includes the full text of the court rules (Sheriff Court Ordinary Cause Rules, in most cases) and the forms you need. Be warned the rules and forms are complex – just reading them does not in itself explain how to use them. You will need advice here, either from a solicitor or from other FNF members who have been there before you.

Families Need Fathers (Scotland) has produced a Guide to the Scots Legal System which can be purchased on-line. This is intended to complement the book “For the sake of the children”, the latter sections of which are very England and Wales-focused, so the Guide is written to contain the equivalent sections adjusted to be correct for Scotland.

If you hunt around the web sites of the law departments of Scottish universities, you can also find background information. There is a good handout on the basics of the legal system, including a useful glossary of terminology, here. There is also a useful glossary here.

Hearings

On launching a Sheriff Court action over child residence and contact, the first hearing is likely to be a Child Welfare Hearing, held in private, at which all parties have to attend (including the children, if they wish to and are old enough) and the Sheriff has very wide powers to make any interim interlocutors (orders) that are felt necessary for the children’s welfare. Parties are likely to come under pressure to reach agreement without requiring the Court to make decisions.

Court process then focuses on ascertaining the exact nature of what is in dispute, so there is an exchange of paperwork (pleadings) resulting in an agreed Record of what accepted and what is disputed. This forms the basis for the final hearing, which is the Proof.

There is scope for a great many other hearings in between, to deal with procedural matters and so on. Most cases settle before Proof.

Enforcement of Orders

If a contact order is obtained but then broken, you can ask the court to enforce it. However in Scotland the only sanction available to the court is to either fine or imprison the parent who has broken the order (options such as community service,  available in England, do not apply in Scotland). The court is unlikely to do this because it will regard it as being contrary to the children’s welfare. Various measures to tackle this problem have been suggested, but it remains an area of considerable difficulty. If you are in this position FNF would love to hear about it, as you may be able to help us add strength to the argument for better enforcement.

Court Reports

If you are used to the English Legal System, or you have read lots of other pages on the FNF website or FNF publications aimed at England, the most fundamental difference you would encounter in Scotland is that CAFCASS does not exist. If a court calls for a report, it will appoint a reporter who will most likely be a solicitor or advocate with experience of family law. It might also be a social worker, particularly if there has been previous social work involvement with the children in question. Either way, in a private law hearing (ie not one raised by a local authority or similar) then the report has to be paid for as part of the legal expenses.

The reporter will not engage with the parties in trying to help reach a settlement in the same way that English CAFCASS officers might – they just report in the terms the court asks them to.

Legal Representation

If you are faced with litigation over your children, you will naturally consider legal representation. We are not in a position to recommend particular solicitors, because experience shows that one person’s experience with a particular individual solicitor can be wildly different to anothers’. However, you can find lawyers through the Law Society of Scotland web pages.

FNF’s general guidance, contained in the publication “Choosing and Using a Solicitor”, is still applicable.

If you join FNF, our members’ network will be able to give you more “local knowledge”. We are also aware of solicitors who are prepared to assist people representing themselves – many firms will not do this, and will only act if they get to run the whole case.

If you live in the Strathclyde area you can also try Strathclyde University’s Law Clinic, where law students will endeavour to help you out. We have not had any feedback from this service and would be glad to hear how you get on if you try it.

Representing Yourself and McKenzie Friends

You are entitled to represent yourself in Scotland, just as you are anywhere else, and FNF members in Scotland have successfully done this. Procedures are quite complex however (much more so than in England) so it is not an easy task from that point of view – though the law regarding child residence and contact remains essentially simple.

You should however only consider representing yourself if you are reasonably confident and articulate and are able to detach yourself sufficiently from the emotions involved. If you do not meet these criteria you are likely to make matters worse, not better, and if you cannot afford legal representation you certainly need to get as much help as you can from others by joining FNF.

The legal right to a McKenzie friend to assist you is not established in Scotland; there is at the time of writing no Scots case law about it. We have had members use McKenzie friends with no objections, and we have also had instances where this help has been refused. If you are refused a McKenzie friend, FNF Scotland would be keen to work with you to establish this right.

Note however that at the time of writing we do not, in Scotland, have a supply of experienced McKenzie friends, though we may be able to find someone willing to help you.

There is a brief Guide for Party Litigants in the Court of Session (the higher civil court) on the Scottish Courts Website under “Raising Actions in the Supreme Courts”.

Legal Expenses

FNF is often asked “how much will my case cost?”. In Scotland, just as anywhere else, this depends on the complexity of the case, but typical expenses range from £3000 for cases resolved with solicitors’ correspondence and formal agreement only to £6000-£8000 for the simpler court cases. It is not cheap. Legal Aid is available, but depends on income and if you are in employment your chances of qualification are slim. Costs against the losing party are commonly awarded in Scots family actions.

Case Law

Scots Law is in part a common-law based system, which means that judgements are often based on precedents set in previous cases, particularly where the previous cases have been appealed to the higher courts. Scots cases used in this way create binding precedents which can be difficult to overturn. Cases from other jurisdictions where the law is similar (such as England and Wales) may be highly persuasive in some cases, but are not binding. Most of the case law quoted in FNF publications and on the FNF website is English case law, so it not necessarily applicable in Scotland.

The Scottish Courts Website has a searchable database of court judgments that might possibly be useful. Otherwise, Scots cases tend to be published in the same places as English ones – Family Law Reports being commonly used. Some FNF members have online access to law reports, and will help other members in this respect.

Children’s Hearings

Scotland has a unique system of Children’s Hearings, designed principally to deal with children in need of some form of compulsory supervision, perhaps due to criminal activity or abuse. Each area has a Children’s Reporter with a wide remit to investigate when information regarding a child is received. The Children’s Reporter will not determine disputed facts however – so if you and your ex disagreed about some matter of fact, it would be remitted to the Sheriff Court to determine what they considered to be the truth. FNF is not aware of this system being used in private family law, but it might be relevant, for example, if there appears to be serious parental alienation going on. FNF would love to receive feedback from anyone using this system.

CSA, C-MEC and Child Maintenance

These matters are not devolved to the Scottish administration and all the relevant information is contained elsewhere on this website.

Cross-Border Issues

Removal of children from Scotland to abroad is covered by the Hague Convention (see elsewhere on the FNF web pages). But, this does not cover removal from Scotland to England, Wales or Northern Ireland, or vice-versa. So, for example, if your ex takes the children to England you are likely to have to go through the English legal system to get court orders, unless proceedings are already under way in Scotland before the removal. You can ask any UK court to return the children to to their place of habitual residence, but unless there are ongoing proceedings and/or you do this within the first couple of days after the removal your chances of success are probably quite low.

If you obtain orders such as for parental rights, residence or contact, you can register them in the other jurisdiction under Section 27 of the Family Law Act 1986. You need the permission of the court making the order, which is best obtained at the time the order is made, though a lot of judges do not seem to understand this and may be confused by your asking. In theory, this system allows the order to be enforced anywhere in the UK, but of course enforcement is a notoriously difficult area in any of the UK jurisdictions.

Children removed to Scotland become subject to the Scottish courts and of course Scottish social work departments and everything else, and experience has shown that this can result in a “right back to square one” approach, with previous social work reports, etc, often not being accepted and having to be done again.

Other Information on the FNF Website (and elsewhere)

Please remember that most of the things to be said about keeping a relationship between children and parents after separation or divorce applies in any jurisdiction, worldwide. Most of the advice you will get is about how to deal with the situation in practical and emotional terms and will always be useful. Only a few things are specific to particular jurisdictions, whether that be Scotland or elsewhere, and they are unlikely to matter at all until you get into litigation, which we would urge you to avoid if at all possible.