October 26 2022, Virtual Seminar

2pm – 5pm: £180

Speaker : Tom Quail, Wright, Johnston & Mackenzie LLP 

The Children (Scotland) Act 2020 received royal assent in August 2020. The changes have not yet been brought into force as the Government, Local Authority Courts and Children’s Hearings prepare for the changes before they have to start delivering them.

The new Act brings the law into line with children’s rights under the United Nations Convention on the Rights of the Child (UNCRC).

This seminar will consider the main changes for children and young people being:-

• Children and young people having more opportunity to give their views to court;
• The courts having to explain decisions to children;
• Children having Support Advocacy Workers in family court actions;
• Measures to keep children safe in contact centres;
• Registration of Child Welfare Reporters and Curators ad litem and rules of how they should carry out their duties;
• The court having to investigate the reason contact arrangements are not working
• Rules to avoid legal proceedings taking too long

The seminar will look at the potential impact, the changes the new Act will bring and the advice which requires to be given by family law/child law practitioners.

Book your place here: http://ccpdtraining.co.uk/booking/booking-childrenscotlandact

With international travel back on the cards after two years of significant restrictions, it stands to reason that we’re going to experience an increase in the number of people relocating to new countries.

Some who live in Scotland but are originally from elsewhere may have been hoping to move back to their home country for some time but have been unable to do so until now as a result of travel restrictions.

For those who are parents, this also means facing the challenge of relocating children. This can be a lengthy process at the best of times, but for separated parents, it can be incredibly complex from a legal standpoint.

The decision to relocate can be incredibly emotional and complicated and when children are involved, another layer of complexity is added, especially when the parents are separated and have differing opinions on the relocation.

When this is the case, it can be near enough impossible for the other parent to relocate to their selected country.

This presents a legal issue and one that should be handled as soon as possible when planning a significant move.

Taking a child out of the country without having the other parent’s consent, can be considered wrongful removal or abduction. Getting the child back from this situation is also dependent on where the child has been moved to.
If a child has been moved permanently to a country that is part of The Hague Convention on the Civil Aspects of

International Child Abduction, then there are procedures in place to ensure the safe return of the child to the UK.

If, however, the country is not part of this convention, a different approach must be taken. This involves getting consular and diplomatic services involved including the Foreign and Commonwealth Office.

In Scotland, it is not a criminal offence to take your own child abroad without the permission of the other parent unless there are certain court orders in place. The legislation differs in England and Wales where a single parent is prevented from taking children abroad without another parent or carer’s permission.

The Children (Scotland) Act 1995 does not require a signature from the other parent as proof of consent to the child being moved away, however, it is generally a wise course of action to obtain this anyway.

It is important to keep in mind that other countries may have different regulations, and these should be thoroughly researched before travel.

Some countries will require signed affidavits from the other parent as proof of consent to travel, where others will want to see the child’s birth certificate, or even an extract decree of divorce if that is the current state of the relationship.

Border controls are very thorough when an adult is travelling with a child, and most family lawyers can assist with organising all the relevant documents and paperwork that may be required.
If one partner does not want their child to move to another country, they may raise a court action, which would prevent the other parent from taking the child out of the UK.

They may even go one step further and ask the court to have the child’s passport surrendered and their whereabouts declared at this point.

The most important factor to consider before moving abroad is what is best for the child. Of course, there are lots of factors to consider and weigh up.

Arrangements must be made to ensure parents will be able to remain in regular contact with their child, as well as what their schooling situation will be when they relocate, amongst other factors such as living circumstances.

Courts are also likely to take the child’s feelings on the situation into account but will balance this with the proposal of the parent who wishes to relocate and determine if they have a genuine motivation to move and that they do not wish to sever any contact between the other parent and the child(ren) in question.

It is always advisable to seek legal advice, whether you are the parent hoping to move abroad or the other parent in the scenario before the relocation process is too far along.

A solicitor will be able to talk you through each step and advise on the process to ensure the child’s best interests are taken into consideration at every turn.

This article first appeared in The Scotsman 

Kinship Care Week in Scotland runs from 14-20th March 2022 and the Kinship Care Advice Service for Scotland is running events all week. You can find out what is on using this link – https://kinship.scot/kinship-care-week-2022/

To mark Kinship Care Week, our Emma Letham has answered some of the Frequently Asked Questions about Kinship Care Orders.

The general principle is that children should be brought up by their parents without intervention from their local authority. However, if this cannot happen, a child should be placed with kinship carers where appropriate and possible.

What is a Kinship Care Order?

A Kinship Care Order is applied for under Section 11 of The Children (Scotland) Act 1995. Under a Kinship Care Order, the Court can grant some or all Parental Rights and Responsibilities to Kinship Carers.

Parental Rights and Responsibilities are held by the child’s birth mother and sometimes the birth father. The important point to note is that under a Kinship Care Order, the Parental Rights and Responsibilities are not completely removed from the parents; they are shared with the Kinship Carers.

Who can apply for a Kinship Care Order?

A Kinship Carer is someone who is related to the child or has known the child and with whom the child has a pre-existing relationship.

Under the Looked After Children (Scotland) Regulations 2009, a Kinship Carer is defined as a “person who is related to the child (through blood, marriage or civil partnership) or a person with whom the child has a pre-existing relationship”.

How much does a Kinship Care Order cost?

The cost of a Kinship Care Order can depend on a number of matters, including whether the application is likely to be contested by the child’s birth parent(s).

If the child’s birth parent(s) are in agreement with the Kinship Care Order, this means the Court process will likely be straightforward and a solicitor who specialises in these matters can offer a fixed cost for the legal work to be undertaken.

If the child’s birth parent(s) are going to contest the application, then the Court process will take longer and there will be an increase in costs.

We would recommend checking if you are eligible for Legal Aid to assist with the cost of obtaining a Kinship Care Order. Most local authorities would require you to check your position in relation to Legal Aid in the first instance.

If you are not eligible for Legal Aid, then the local authority may contribute to the legal costs involved in applying for a Kinship Care Order; they may meet some or all of the costs.

It may be beneficial for you to obtain information from the local authority in relation to their contribution towards legal costs in writing.

It is important to remember that the Court will not automatically grant a Kinship Care Order – the Order will only be granted where it is in the best interests of the child. In reaching a decision, the Court’s paramount consideration will be the welfare of the child.

If you have any questions about Kinship Care or applying for a Kinship Care Order, please do not hesitate to contact our Emma Letham at ell@wjm.co.uk for a free, confidential chat.

Whether you are married or in a cohabiting relationship, one of the first things your solicitor will focus on during your initial meeting will be to establish the date you separated from your spouse or partner. 

In divorce, the date of separation is important because the value of matrimonial property will be determined on the date you separated.  In essence, you are looking to obtain the balance sheet of the marriage at the date of separation – that is the total of all assets which make up the matrimonial property after deducting any debts. 

If you are cohabiting, when you cease to cohabit is critical because you only have one year from the date you separate to bring your claim to court.  If you fail to meet this deadline, the financial claim you may have against your former partner will fall. 

How then is the date when you stop cohabiting established?

In many situations the date will be obvious and not subject to dispute. 

But sometimes parties to a relationship will have differing views as to when a relationship broke down.  A couple may still live in the same house but have stopped cohabiting for legal purposes long before one of you moves out. 

The issue will be determined objectively so your solicitor will ask you questions about the nature of your relationship and changes in the normal pattern of behaviour. This will include sleeping and eating arrangements, holidays and social activities, and whether there was any change in the usual financial arrangements which operated between you.

For couples in a cohabiting relationship which may be breaking down it is imperative to get early legal advice on this issue to alleviate the risk of losing your right to make a claim against your ex.

If you have any questions following a separation, please contact our Roger Mackenzie at rlm@wjm.co.uk

To mark Adoption Week Scotland, our Adoption specialist, Emma Letham, has put together a series of blogs, answering commonly asked questions from Prospective Adopters.

Do Prospective Adopters need to take part in the Children’s Hearing process?

The short answer is no. Prospective Adopters do not need to take part in the Children’s Hearing process.

However, it is something to which you might want to give some consideration, particularly if the child’s birth parent(s) are likely to oppose the Adoption Order at Court.

When a child is living with their Prospective Adopters, the child will often be the subject of a Compulsory Supervision Order (“CSO”) through the Children’s Hearing System.

The CSO is required to be reviewed every 12 months from the date it was issued. The CSO is reviewed at a Children’s Hearing and the Panel Members are able to make substantive changes to the CSO. These changes can include the contact which a child has with their birth parent(s).

As a Prospective Adopter, you have no automatic right to attend or contribute to the Children’s Hearing. In addition, unless you are deemed a “Relevant Person” by the Children’s’ Hearing, you are unable to Appeal decisions of the Panel Members. The child’s Social Worker cannot Appeal a decision.

Therefore, some Prospective Adopters wish to be deemed “Relevant Persons” to allow them to attend and contribute to the Children’s Hearings for the child. This also provides them with the right to Appeal a decision if the Panel Members make a decision which the Prospective Adopters do not believe is in the child’s best interests.

The test for being deemed a “Relevant Person” is as follows; –

“The individual has (or has recently had) a significant involvement in the upbringing of the child”.

A Prospective Adopter should therefore easily meet this test (if the child is currently living with the Prospective Adopter).

A child’s birth parents automatically have “Relevant Person” status.

In some Adoption Cases, where the birth parent(s) are opposing the Adoption Petition, the birth parent(s) may request an early Review Hearing to ask the Panel if contact can be re-instated between them and the child.

If the Prospective Adopters are deemed Relevant Persons, then they have a right and duty to attend Children’s Hearings for the child and have their views heard by the Panel Members.

For more information about the Children’s Hearing process or the Adoption legal process, please contact our Adoption specialists – Emma Letham at ell@wjm.co.uk and Roger Mackenzie at rlm@wjm.co.uk

What changes will the Children (Scotland) Act 2020 make for children and young people? 

The Children (Scotland) Act 2020 was passed by the Scottish Parliament in August 2020. The changes have not yet been brought into force to give the Government, Local Authority Courts and Children’s Hearings time to prepare for the changes before they have to start delivering them. 

The new Act covers lots of different things. It:

  • brings the law into line with children’s rights under the United Nations Convention on the Rights of the Child (UNCRC) to ensure that children’s views are heard in family court cases and that the best interests of the children are at the centre of these cases; and 
  • gives more protection to victims of domestic abuse and their children. 

The main changes for children and young people are:

Children and young people will have more opportunity to give their views to court

The courts will have to take the starting point that all children are capable of giving their views no matter how old they are. All children who want to give their views must be given the chance to do so and in a way that they prefer, whether that is speaking to the Judge or other means of setting out their views. 

At the moment, there is a presumption that a child aged 12 and over is mature enough to give an opinion, however, by changing the law there is a clear signal that children of all ages have a right to be heard. Once they have been heard then the person making the decision has to take account of those views and also their age and maturity. 

Courts will explain their decisions to children

When a Judge or a Sheriff makes a decision as to where a child is to live (residence) or time that they have to spend with the other parent (contact), that decision has to be explained to the child in a way that they can understand. 

Every decision doesn’t have to be explained to the child, only major decisions like ones on living and contact arrangements 

Children will have support advocacy workers in family court actions

Advocacy workers will support and represent children when courts are deciding for example where they should live and what contact they should have with the other parent. This will take time to put in place that the Scottish Government now must start setting up these services for children who are giving their views to the court. 

Measures to keep children safe in contact centres

Child Contact Centres are places where children, parents and other people in children’s lives can meet. Contact Centres will have to follow rules which will be put in place. 

Other Matters 

  • Local authorities will have a legal duty to support, care experienced brothers and sisters relationship when they aren’t able to live together; 
  • A register of Child Welfare Reporters (who give a report to the court about a family situation) and Curator ad litems (who can be appointed by the court to represent a child’s interest) is to be set up and rules on how Child Welfare Reporters and Curator ad litems should carry out their duties;
  • Courts will also have to investigate the reason that contact arrangements are not working and give the child an opportunity of giving their views; 
  • Other changes include rules to avoid legal proceedings taking too long where this would affect a child’s welfare and new measures to assist vulnerable witnesses and parties in court actions. 

More information

WJM Partner Tom Quail is here to help with any of your queries about the Children (Scotland) Act 2020, or other family law matters. Get in touch on 0141 248 3434 or email tlq@wjm.co.uk

Get in touch – call us on 03333 661 274