Most parents with young children regard the arrangements which are to be made for the children's future care and upbringing as being of paramount importance. Many people still talk about custody and access although parents will often now seek to establish shared care arrangements in relation to the children of a marriage whereby the children spend substantial periods of time with each parent.

Children who are old enough and articulate enough to form and express a view as to the arrangements which they would prefer, and certainly those over the age of twelve years, are legally entitled to have their views taken into account when decisions are being made with regard to their care.

In the majority of cases parents are able to resolve by way of direct discussion between them and with their children about what arrangements should be put in place for the children's care and upbringing.

Where it is not possible in the early stages to reach agreement as to child care arrangements by way of direct discussion, we frequently refer parents to mediation to allow a trained mediator to assist in the making of child care arrangements.

If agreement is reached either by direct discussion or by way of mediation, parties may elect to record the arrangements in a Minute of Agreement.

In rare cases it is not possible for parents to agree what arrangements should be made for their children. In such circumstances, our family law solicitors have expertise in making applications to the court for both residence and contact orders, as appropriate. In every case which goes to court, the primary test which falls to be applied when the court is to decide the issues is "what is in the best interests of the children".

Relocation cases

We are seeing a rise in cases where, following separation, it is the intention of one of the parents to move such a distance from the family home that a shared care arrangement is impractical. For example, one parent might get a job in England or abroad. In some such cases, it is possible for discussion between parents to result in a mutually acceptable arrangement being arrived at for the children. However, where both parents wish to continue to see the children on a very regular basis, it may become necessary for one party to make an application to the court either to be allowed to relocate to another jurisdiction with the children or to prevent the other party going. Such cases involve difficult issues of international jurisdiction and the applicable law. We utilise our expertise in cross border jurisdictional and international family law cases, coupled with our experience in handling child related cases, in representing clients in what is a very difficult situation.

Adoption

Adoption is the legal process by which the relationship of parent and child is created by an order of the court. In Scotland a child can be adopted by a person or a couple. The adoptive parents must be over the age of 21. Unmarried and same sex couples have the same right to adopt a child as heterosexual married couples.

The Adoption and Children (Scotland) Act 2007 is the law that relates to adoption in Scotland. The legal relationship is created when the court make an Adoption Order following the lodging of an Adoption Petition.

There are two ways that an Adoption Petition can be lodged. The first option is for a direct adoption petition to be lodged with the court by the prospective adoptive parents. This option has the benefit of speed. The other option is for the local authority to apply to the court for a Permanence Order with authority to adopt and thereafter for a direct adoption petition to be lodged.

Surrogacy

Surrogacy is when one woman agrees to carry a child with the intention of handing the child over to another person or couple following birth.

There are two types of surrogacy: partial surrogacy (also known as 'host surrogacy') and full surrogacy (also known as 'straight surrogacy'). In full surrogacy there is no genetic link between the surrogate and the child and in partial surrogacy there is a genetic link.

Surrogacy is legal in Scotland. Surrogacy arrangements are legal but they are not enforceable in the courts. It is also illegal to pay a surrogate other than for "reasonable expenses".

Legal input is required when the surrogate mother gives birth to the child. When the child is born, the surrogate mother will be deemed to be the legal mother of the child and she will automatically have parental rights and responsibilities in relation to the child regardless of genetics. If the surrogate mother is married, then her husband will also have those rights and responsibilities. These legal rights will continue until such time as the intended parents adopt the child or seek a parental order under The Human Fertilisation and Embryology Act 1990.

There are some countries where commercial surrogacy arrangements are legal. Taking legal advice is crucial if International surrogacy is being embarked upon.

If you are considering any of these child related aspects it is important to take legal advice and we can advise on all aspects both within the UK and from an international perspective.