children

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.

Child Arrangements During Christmas Holidays

Posted on by Tom Quail

Child Arrangements During Christmas Holidays

After the last two years, time with loved ones has never felt so important.  However, for separated parents, Christmas can be a time of worry and stress as arrangements need to be put in place as to where and how the children will spend the festive season. 

Here are some tips for avoiding any festive unhappiness and how to agree on arrangements for children during Christmas.

What are my rights for seeing my children over Christmas?

It is recognised that it is in the best interest of the children to see both parents and for children to have contact with both parents.

Unless there are issues of domestic violence and/or abuse, neither parent should prevent the other from seeing the children.

It is strongly advisable to agree an arrangement to ensure time is spent with both parents during what is a magical time of year for all children.

Tom Quail shares some tips on agreeing festive contact arrangements, amicably, as follows:-

  • Be organised

If you do not have agreed plans in place, start a conversation with your ex-partner and agree an arrangement that works best for you and the children.

Parents tend to agree that Christmas Eve, Christmas Day and Boxing Day are the main days and are dealt with separately from the rest of the holiday period.

Suggested arrangements can include:-

  • Christmas Eve at one home until lunch on Christmas Day;
    • Children spending the entire Christmas period with one parent and alternate the following year;
    • Share Christmas Day with the handover after lunch or tea time if you live near to one another;
    • Share the holidays so one parent has one week with Christmas and the other has New Year, and alternate each year.
  • Include the children

Include the children, but do not make them choose.  Depending on the age of the children, include them in discussions as older children often need to feel they are being heard.

Once a child is older than five, the courts will want to know their views.  Avoid court proceedings, but include the children.

  • Be fair and considerate to the other parent

Ask yourself if you would be happy with the proposed plan.  If the answer is “no”, maybe the plan should be reconsidered.

  • Put the plan in writing

Once you reach an agreement, it is a good idea to put it in writing, email, send it to the other parent.  If there are any other issues, these can be resolved in good time before Christmas.  This should also help to avoid any misunderstandings as you have committed it to print.

  • Stick with the plan whenever possible

Be prepared to be flexible with arrangements for the children and willing to adapt your plans to an extent.

  • Last minute changes

Last minute changes to the plan often cause feelings of disruption, uncertainty and anxiety.  Whilst flexibility is important, it is equally important to have stability.

If you need any advice on child arrangements during Christmas, or any other family law issues, contact Tom Quail for a free minute case review.

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 

Kinship Care Orders – FAQs

Posted on by Emma Letham

Kinship Care Orders – FAQs

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.

Inflation bites twice on separated families

Posted on by Roger Mackenzie

Inflation bites twice on separated families

As the cost of living crisis hits households across the country, separated families may need to revisit maintenance arrangements agreed at a time when inflation was subdued.

When married couples split spouses owe a duty of financial support to one another. This will often see the higher earning party provide maintenance or aliment in the form of monthly payments to the spouse who requires support to meet their needs.

Typically, both spouses will draw up a schedule of income and outgoings to assess the needs of the receiving party and the resources of the paying party to meet any shortfall. Frequently where children are involved the dual obligations to maintain a spouse and children will be wrapped up in one payment, or perhaps by continuing to meet certain costs of the household where the children mainly reside, such as the mortgage and council tax.

If the arrangement or court order was reached based on costs which have since spiralled it may be possible to seek to vary the level of aliment to be paid by reference to a new schedule of outgoings.

However, if the paying party also has mounting fuel and food costs, but without a comparable increase in their available income, they may argue they do not have the resources to offset the rising costs of living which impacts on both households.

Some long-term maintenance arrangements will include reference to regular review with reference to the Retail Prices Index or Consumer Prices Index. This can shelter the receiving party from inflationary pressures.

Financial support is usually one of the most pressing issues to be agreed when couples separate. Agreements reached in the early days after separation can have important consequences further down the line and early advice on your financial requirements or obligations can be crucial in setting the stage for the longer term arrangements which follow.

If you have any questions about financial support or child maintenance 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.