separation

Sun, Sea and Section 2(3)

Posted on by Iona Whyte

Navigating summer holidays as separated parents

With the summer holidays fast approaching many separated parents will be planning holidays at home and abroad with their children and making arrangements with their children’s other parent.

Shared care arrangements over the holidays may already have been agreed in advance informally, by way of Minute of Agreement or Court order regulating contact over the school holidays. However, if this is not the case, or you wish to make some changes, this is something to consider as early as possible in your holiday plans.

What does the Law say

Legally there is a difference between taking a child on holiday within the United Kingdom and abroad. Section 2(3) of the Children (Scotland) Act 1995 states that, no person is entitled to remove a child who is habitually resident in Scotland out with the UK without the consent of any other person who holds Parental Rights and Responsibilities, unless there is a court order regulating the matter. This rule applies up until a child is 16. 

While the 1995 Act does not require a signature from the other parent as proof of consent to the child travelling abroad, we would generally advise parents obtain this to avoid any issues at the airport.

The country you intend to travel to may have different regulations, and these should be thoroughly researched before travel. If you have a different surname from your child, you may require to bring your child’s birth certificate or Decree of divorce [if that is the current form of your relationship].

Border controls can be thorough when an adult is travelling with a child, and our family law team can assist in preparing the relevant documents that may be required to travel abroad with your child.

Withholding consent to travel

If you wish to take your child on holiday abroad and the other parent is withholding their consent, you can apply to the court to grant an order known as a “Specific Issue Order” to allow you to travel. Such orders can allow release of the child’s passport to you, if withheld, and authority to travel abroad for a specified period.

Likewise, if you are concerned about your child travelling abroad with your former partner, as a parent with parental rights and responsibilities, you also have the authority to withhold or withdraw your consent to travel if considered in your child’s best interests. The test for the court here is to determine if consent is being withheld unreasonably.

If you consider your child’s other parent may seek to take your child abroad without your consent, you can apply to the court seeking an order preventing them from being removed from the UK.

Preparation is key

As with any holiday plans, forward planning is key. Share you plans with your child’s other parent as early as possible and if you have any concerns consent may be withheld, speak to a family law solicitor who can assist with getting your family holiday back on track.

WJM Family Lawyer Welcomes New Legal Guidance on Cohabiting Couples

Posted on by Tom Quail

WJM Family Lawyer Welcomes New Legal Guidance on Cohabiting Couples

A leading family law solicitor has welcomed new guidance for cohabiting couples in Scotland which will entitle partners to financial support in the event of separation.

Tom Quail, head of the family law team at Wright, Johnston & Mackenzie, believes the recommendations made by the Scottish Law Commission in its latest report will simplify the law while offering a broader range of outcomes for unmarried couples whose relationships break down.

Tom, who specialises in areas including divorce, adoption, and custody arrangements, commented following the publication of the Scottish Law Commission’s report on cohabitation, which makes a series of suggestions to improve and update the law.

Tom said: “This area of the law has long been criticised for being outdated, overly complicated, and unrepresentative of the growing numbers of couples in Scotland who choose not to get married, so this report and its recommendations are very welcome.

“I think the key takeaways from the report are, firstly, that parties in an unmarried, cohabiting couple could be required to provide short-term financial support for former partners, and that a clearer formula is required for judges to apply to calculate levels of financial support.

“At present, the law around financial support for cohabiting couples is unclear, and this report reinforces how important it is to have clear guidance enshrined in law.”

Now the report has been published, the recommendations will go to the Scottish Parliament before the Bill is updated, which could take until 2025.

Tom continued: “In some countries such as Australia and New Zealand, couples who are cohabitants largely experience the same legal rights as married couples if they have lived together for a certain period of time, and many expected the Scottish Law Commission to advise a similar approach to be taken in Scotland.

“However, there are plenty of couples who make the choice not to marry, and it’s important for the law to recognise their decision to do so as much as those who choose to get married. If the law makes the rights the same for unmarried couples, they are effectively eliminating those couples’ choices to be unmarried.

“I welcome these findings and believe updated law in this area is vital to better represent how people are living in the modern world.”

The Law on Cohabitation – Proposals for Change

Posted on by Tom Quail

The Law on Cohabitation – Proposals for Change

Couples could receive financial support from their partners if relationships break down, a report aimed at reforming the law for cohabitants in Scotland has suggested.

In the report published on 2nd November, the Scottish Law Commission reviewed the existing law for cohabitants and found it was “out of date, unclear and overly complicated.”

They found attitudes to relationships and families had changed in Scotland since this was introduced as part of the Family Law (Scotland) Act 2006.

The Commission recommended reforms aimed at “achieving fairer outcomes” for cohabitants by simplifying the law as well as a broader range of remedies for when relationships break down.

The report suggest a more modern and inclusive definition of “cohabitant” that does not rely on comparison with married couples or civil partners. 

A clearer test for courts to apply when separated cohabitants make a claim for financial provision and guiding principles to achieve fair outcomes for both parties was also suggested.

Parties could provide short-term financial support for former partners in the case of serious hardship, the report suggested, with courts being required to take notice of existing agreements between cohabitants.

Kate Dowdalls, KC, Lead Commissioner on the project, said:- “Problems in this area of law were identified shortly after the 2006 Act came into force.  Reform is long overdue.”

The report has now been submitted to the Scottish Government, together with the draft Bill.  It may well be that the Scottish Government would wish to consult on the proposed changes and recommendations.  A possible date for the Bill to become law is 2025.

Until the law is changed, cohabitants have to rely for financial provision on a law which is unclear and complicated.  There is a strict one year time limit after separation for making a financial claim, after which the claim is time barred.  Until the law is changed, it is important to obtain specialist legal advice in this area. 

Please get in touch if you would wish to know how to make a claim for financial provision within the one year time limit.

WJM Solicitor Gains Trauma Awareness Accreditation

Posted on by Margaret Hoisington

WJM Solicitor Gains Trauma Awareness Accreditation

A solicitor from Wright, Johnston & Mackenzie LLP has been accredited for her competency and knowledge on the complexity and impact of trauma.

Emma Letham, Associate at WJM, has gained the Trauma-Informed Lawyer Certification from the Law Society of Scotland at a time when trauma-awareness and trauma-informed practice are forming the heart of a fairer justice system.

Emma has worked in family law for over seven years, becoming a specialist in adoption and permanence cases.

The prominent member of the Association for Fostering, Kinship & Adoption Scotland was certified after completing the specialist course that has been in high demand, despite it only launching a year ago.

Emma said: “It is a privilege to have been given the opportunity to undertake this course. Upskilling in how to spot signs of trauma is so important in effectively handling cases that require an extra level of sensitivity.

“I have always been interested in psychology and human behaviour and it is therefore no surprise that I chose to practice in a human-centric area of the legal sector.

“I now feel better equipped to assist my clients through a trauma-informed practice and I am of the view this course is invaluable for all family lawyers.”

Tom Quail, head of the WJM family law team, said: “Emma has shown high levels of compassion and integrity throughout her career and this course will stand her in good stead for providing the best possible support to her clients.

“Our firm is committed to supporting the team in pursuing the CPD and training opportunities that will help them to continually upskill and provide the best possible level of service.”

It adds to Emma’s other specialist training, as she has previously undergone Domestic Abuse Training for Solicitors provided by Scottish Women’s Rights Centre.

Warning Issued Over ‘DIY’ Sperm Donation Agreements

Posted on by Tom Quail

Warning Issued Over ‘DIY’ Sperm Donation Agreements

Tom Quail, family law specialist at WJM, has issued a warning to those considering a ‘DIY’ sperm donor agreement instead of going through regulated clinics.

Doctor holding urine sample cup. Medical test in hospital.

As the unregulated sperm donation market continues to grow and more people opt for private arrangements, greater awareness of the legal implications is needed.

He said: “While it is illegal to sell sperm in the UK, there is a growing trend of people obtaining sperm through unofficial and unregulated channels, whether that’s by using online marketplaces or making arrangements with close friends.

“However, as well as the lack of screening for medical conditions or background checks on donors, there is also a host of legal implications which it’s vital to consider.

“Some people going down this route may decide to draw up and sign a ‘donor’ or ‘co-parenting’ agreement to set out in writing what is agreed between all parties, believing these are legally binding. They’re not, nor are they a guarantee about the role a donor will or won’t have in the child’s life.”

He warned that the consequences of donating sperm through a licensed clinic and donating through a private arrangement differ considerably.

Donors who donate their sperm through a licensed clinic are not treated as the legal father of any child they help conceive. This means that a clinic donor cannot be held financially accountable for their genetic children, nor will any donor-conceived children have any rights of inheritance from the donor. Furthermore, the donor will also not have any say in the upbringing of the child.

By contrast, a donor who donates sperm outside of a licensed fertility clinic will not acquire the same automatic protection, and will be considered the legal father of the child.

Tom added: “A sperm donor should think carefully about the role they may wish to play in the child’s life and whether they want to have any contact with the child in future. If they don’t, there is the potential for disputes further down.

“Going down the non-licensed route can lead to major problems and exposes all those involved to potential legal battles in future.

“Some people may feel the licensed clinic route is cost prohibitive, but in reality going down the route of a DIY donor legal agreement could have considerable consequences so it is important to take this into consideration and plan carefully from the outset.”

What Changes will The Children(Scotland) Act Make for Children and Young People

Posted on by Margaret Hoisington

What Changes will The Children(Scotland) Act Make for Children and Young People

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

Most Important Factor when Relocating is what is Best for Children

Posted on by Tom Quail

Most Important Factor when Relocating is what is Best for Children

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 

Why the date of separation matters when couples split

Posted on by Roger Mackenzie

Why the date of separation matters when couples split

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

Get in touch – call us on 03333 661 274

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We do not offer Legal Aid as a service for family matters. If you are unsure, you can check your eligibility on the Scottish Legal Aid Board website.