SCOTLAND Law and Practice Contributed by: Ciara Wilson, Gillian Crandles and Lauren McDonach, Turcan Connell
as a person under the age of 18, but most PRRs only apply to a child who is under the age of 16, except the responsibility to provide guidance. Most court orders cease to apply when a child turns 16. In Scotland, there is no concept of custody and access, but rather residence and contact. There are no presumptions in relation to an equal divi - sion of time between separated parents but the generally held view in Scotland is that a child should enjoy a meaningful relationship with both parents. Accordingly, it is common for a child to reside with one parent and have contact with the other. A parent may not remove a child from the UK without the consent of the other parent or a court order allowing the child to be removed. Restrictions on the Court The court can make any order as it sees fit, including residence, contact and orders grant - ing or restricting PRRs, so long as the order is in the best interests of the child and it would be better for the child to make the order than make no order. Specific-issue orders can regu - late aspects of a child’s life including schooling and medical treatment. Child Maintenance Child maintenance is a sum of money paid to the parent with whom the child resides (whether by agreement or by court order) by the other parent regardless of whether the parents are married. Child maintenance can be agreed via a private arrangement between parents or, where all par - ties reside within the UK, administered through the Child Maintenance Service (CMS), which is a government scheme. If parents use the CMS to calculate an appropriate amount of mainte -
nance, then a statutory formula is applied. This is calculated as a percentage of the “non-resident” parent’s (the parent with whom the child lives less frequently) gross weekly income, minus any pension contributions. An adjustment is made to take account of the number of nights that the child lives with the non-resident parent each week. When childcare is shared exactly equally between parents, no child maintenance is pay - able. In Scotland, the CMS has exclusive jurisdiction for assessing and enforcing payment of child maintenance where both parents and the child live in the UK, and the child is under the age of 16 or 19 if they remain in full-time, non-advanced education. If parties cannot agree an appropriate amount of child maintenance, then, in most situ - ations, the only remedy is to apply to the CMS for an assessment. The CMS has wide-ranging powers to investigate the non-resident parent’s income. Parents have the ability to agree an amount of child maintenance between them and for that amount to be recorded in a contract to be enforced as required. After one year from sign - ing such a contract, either party can apply to the CMS for an assessment that would override the amount agreed in the contract. Where all parties are in the UK, the CMS has exclusive jurisdiction to determine child main - tenance. There are, however, limited situations where a court can make an order, as follows. • The court can make a top-up order when the CMS maintenance calculation demon - strates that the paying parent’s gross income exceeds GBP3,000 per week from all sourc - es.
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