SCOTLAND Law and Practice Contributed by: Ciara Wilson, Gillian Crandles and Lauren McDonach, Turcan Connell
• The court may make an order where the CMS does not have jurisdiction because one or more parties reside outside of the UK. • From the age of 16 to 25, a child can bring a claim for maintenance in the court against one or both of their parents directly, provided they are undergoing full-time, advanced edu - cation, such as studying at university. • The court can make a freestanding or top-up order when the child has expenses attribut - able to a disability. This is determined on a case-by-case basis and takes into account expenses such as the costs of a carer or the cost of an adapted home. • An order can be sought from the court to cover educational costs, such as private school fees. When making any of the above-mentioned orders, the court will consider the needs of the resident parent, the resources of the non-resi - dent parent, and generally all circumstances of the case. Children can make a claim against their parents if they have reached sufficient age and maturity, which is deemed to be 12. Young adults up to the age of 25 may make a claim against their parents, provided they are undergoing trading or education. The courts will make an award based on needs, resources, and all circumstances of the case. 3.3 Other Matters Courts’ Power in Cases of Disagreement In circumstances where parents disagree about a particular issue in relation to the upbringing of their child, either parent can apply to the court for a specific issue order under Section 11(2) of the Children’s (Scotland) Act 1995 to determine the matter in dispute. By way of example, if par - ents disagree about what school a child should
attend, the court has the power to make an order in respect of the child’s schooling. As with all child-related matters that come before the court, the welfare of the child is the paramount consid - eration for the sheriff or judge. Parental Alienation Parental alienation is not a term that is defined in Scottish family law, but practitioners are increas - ingly seeing the issue raised in high-conflict par - enting disputes. It is commonly used to describe a situation where a child rejects their parent, often displaying extreme negativity towards them, which is allegedly the result of psycho - logical manipulation by the other parent. Often the child or the aligned parent will offer a variety of reasons to justify the child not wanting to have contact with their other parent, such as domestic abuse concerns. When making an order in respect of a child, the sheriff or judge’s paramount consideration is the welfare of the child. In addition, the sheriff or judge must consider a range of factors, known as the welfare checklist, before making an order. The factors include ascertaining the wishes and feelings of the child concerned as well as the need to protect the child from abuse. The decision about whether or not a child has been alienated is a question of fact for the sheriff or judge to determine at a proof. Often in cases where parental alienation is alleged, the sher - iff or judge will appoint an independent expert, such as a child psychologist, to investigate and report to the court the underlying issue for the child and for the parents, and possibly make rec - ommendations for contact. Although an inde - pendent expert’s report is not determinative, it is often of assistance to the sheriff or judge in understanding the reasons for the child’s rejec -
261 CHAMBERS.COM
Powered by FlippingBook