SCOTLAND Law and Practice Contributed by: Ciara Wilson, Gillian Crandles and Lauren McDonach, Turcan Connell
3.2 Living/Contact Arrangements and Child Maintenance Application to Court Either parent can apply to the court for a resi - dence order, regulating the arrangements for where and with whom a child should live, or for a contact order, regulating the arrangements for maintaining personal relations and direct contact with a child. Before the court will grant an order, the sheriff or judge needs to be satisfied that: • firstly, the proposed order is in the best inter - ests of the child; and • secondly, it would be better for the order to be made than no order at all. Beyond that, the sheriff or judge must take into consideration the views of any child, provided that the child is capable of expressing a view. Legal Approach to Custody and Parental Responsibility In Scotland, mothers have automatic parental rights and responsibilities (PRRs) regardless of their marital status. If the father was married to the mother at the time of the child’s birth, he too has automatic PRRs. Unmarried fathers obtain PRRs if they are registered as the father on the child’s birth certificate or obtain an order via the court. Under the Children (Scotland) Act 1995, parental responsibilities include the responsibility to safe - guard and promote their child’s health, devel - opment and welfare and the responsibility to provide guidance and direction. A parent is also responsible for maintaining contact with their child. Parental rights mirror the responsibilities, and their function is to enable parents to fulfil their parental responsibilities. A child is defined
Status of Agreement Reached via Non-Court Process If in the form of a registered minute of agree - ment, an agreement reached via a non-court process has the force and effect of court orders and can be enforced as such.
3. Child Law 3.1 Choice of Jurisdiction Jurisdictional Grounds
In actions relating to children (including parental responsibility, residence and contact actions), jurisdiction is established through the child’s habitual residence in Scotland or, in the case of an emergency, through their presence in Scot - land. If an action is raised in the sheriff court as opposed to the Court of Session, then the child must be habitually resident within the geographi - cal boundary of the sheriffdom. Domicile, Residence and Nationality As in “Jurisdictional Grounds”, jurisdiction in actions relating only to children is primarily based on the habitual residence of the child. Should issues of parental responsibility arise in the context of other legal proceedings such as a divorce, the court seized for the divorce is also able to make orders in relation to children and their care even though they are not resident in Scotland. In cases where a litigation has concluded and final orders are granted in relation to parental responsibility, should a party seek to revisit or vary the orders granted, they must do so with an application to the court which granted the final orders.
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