This article originally appeared in the Evening Times on Wednesday 31st January 2018.

Separation is not only an upsetting and challenging time for adults – it can also be an extremely distressing time for children.

Children too often find themselves piggy in the middle of warring parents who may be so entrenched in their views as to how best to care for the child that they forget or at least seriously underestimate the impact upon the child of their conduct.

The current terminology dictated by statute likely does not assist. Lawyers are required to deal with the concept of a child being “resident” with one parent and have “contact” with the other. Whilst neither confers upon the parent in question greater legal control, psychologically these terms can create an imbalance where the “resident” parent may be mistakenly of the view that they are able to dictate to the other, the care arrangements going forward.  

The Law in Scotland

In Scotland, married parents, and couples who are not married but where the father is named on the birth certificate (in births post 4th May 2006), have parental rights and responsibilities equal to one another. Further there is no presumption in favour of either parent.

The primary focus for professionals helping a parent through separation is to encourage the parents to agree the practical and financial arrangements in relation to their children as it generally follows that parents who can agree their own arrangements (rather than having them unilaterally imposed by a court) are more likely to abide by them. Furthermore, the earlier parents can put such arrangements in place the better in terms of positively laying the foundations for dialogue between them going forward. It is important for separating parents to recognise that whilst they may be ready for their relationship to come to an end, it is most likely the case that their children are not likewise prepared. Parents should have in mind that their separation is not an isolated event in a child’s life. If anything, separation is a thread that continues to weave and produce challenges throughout their lives. If it can be avoided a child should not feel under pressure to choose between one parent or the other, and should be told that it is ok to miss mum when at dad’s house and vice versa. Parents should look to the future and ask themselves how they want their child’s graduation or wedding to be.

Court Resolution

If agreement is simply not possible then the courts can be invited to resolve the matter. When considering any matter relating to children, the court must have the welfare of the child concerned as its paramount consideration and shall not make an order unless it considers that it is absolutely necessary. Depending on the age and maturity of the child, the child’s views may be recorded and taken into account by the court in reaching its decision.