A blog from our family solicitor Judith Higson on Parental Rights and Responsibilities #Scotland
27 August 2019

Points on the new parent checklist:

Who is going to change nappies? Disposable or reusable? Who will get up for the night time feed? What equipment will we need? How much sleep will the baby need? Who will I turn to if I need help and reassurance? The financial, emotional and practical issues are probably foremost in your mind and there’s lots to think about when you are expecting. The legal rights and responsibilities of having a child are probably the last thing on your mind but these are important to know.

Parental Rights and Responsibilities

When you become a mother of a child you automatically have something called Parental Rights and Responsibilities. 

These include the right to have the child live with you. If the child is not living with you, you have the right to exercise contact with the child, the right to have a say in the child’s welfare, to have a say in the child’s education and all important decisions affecting the child.

As the father of a child, you will have Parental Rights and Responsibilities for the child if you are the biological father and:

– if you are married to the mother of the child at the time of the child’s conception or

– if you later marry or

– if you are named on a child’s Birth Certificate or

– if you have entered into a legal Agreement with the child’s mother for these rights and responsibilities or

– the Court has granted them to you.

If you aren’t married, the decision on whose name goes onto the child’s birth certificate is an important one.

You should try to have a think about this before your baby arrives.

As a family lawyer, I see all sorts of cases where mums and dads have problems sharing their Parental Rights and Responsibilities if they separate.

In this country, there is no presumption that the mother and father should share the care of their children if they separate.

This is unlike quite a lot of other countries in the world where that’s a starting point.

If a mum and a dad can’t agree when they separate on how the children are going to be looked after, they can find themselves in Court in front of a Sheriff who then decides what’s in the best interests of their child or children, with no presumption that a mum is better than a dad to look after the children nor is there the presumption that a dad is better to look after their child or children than a mum.  What matters is the best interests of the children at the time the decision has been made and, for a Court, the child’s welfare is the most important consideration. The Courts in Scotland do favour the children having one person who is their principal carer with the other parent playing a somewhat lesser role in caring for the children.

Relationships are not always easy but the thing which creates the most problems for families is where mums and dads cannot communicate with one another in a civil and respectful way. Where there is conflict between mums and dads that damages the children.

It’s not separations that damage children, it’s conflict.

I am passionate about helping mums & dads separating and want to help them to do so with the least possible damage to their family.

There are different ways that people can choose to deal with their separation and resolve all of the issues which come up. One of these ways is what we call “solicitor negotiation” where solicitors just send letters to one another.

Another way is Mediation which involves the couple being in a room together with a Mediator. In a Mediation the couple don’t receive legal advice but they are told what the law can do.  They don’t end up with a legally binding agreement but if the Mediation is successful they can take what they have agreed to a solicitor who can then draw up a legal document which they both sign. This is called a Separation Agreement.

Another method is Collaboration. Collaborative Law involves the couple each having their own solicitor. There are meetings called four-way meetings which take place with the couple together with each of their solicitors and it is the couple who are guided towards finding solutions that suit them and their family.  The couple sign a Participation Agreement at the beginning, as do the solicitors, and they agree that they will not threaten to take each other to Court. They also agree to be honest with one another, they agree to try to resolve their differences so far as possible by way of a compromise, they agree that they will listen to each other’s views and they agree that they will be civil and respectful to one another.

The last way of resolving any issues coming out of a separation is to go to Court.

Going to Court about children of relationships has to always be a last resort, as you are handing the decision over to someone who doesn’t know you or your family. Also, you are going to be faced with considerable legal costs as it is very expensive if you don’t qualify for Legal Aid. Going to Court usually does not make an already difficult situation any better.

You might have read about Gwyneth Paltrow and Chris Martin consciously uncoupling. What they tried to do was leave one another with a focus on what was best for their children and minimise the damage that could have happened if they had separated in a way which was high in conflict.  Collaborative law and mediation can offer something similar.

I am an experienced mediator and I am also a collaborative lawyer so I am on hand and available to help with these processes. If you would like to explore your options please call 0141 374 2121 or email info@scullionlaw.com

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