The Children (Scotland) Act 1995 contains provisions in relation to the welfare of children. Section 11 of the Act in particular, outlines orders which can be made in respect of children upon the application of any interested party. It is open to individuals who claim an interest in a child, to apply to the Court to make an order requesting that a child live with them (a residence order), have contact with them (a contact order) or even that they be granted parental rights and responsibilities in respect of the child (assuming of course that they do not already possess these).
Under section 11 of the Act an order may be sought by any person who either has parental responsibilities and parental rights or claims an interest in the child and his or her welfare. The court does not need to wait until it is asked and may decide to make a section 11 order of its own accord. The court need only be satisfied when making any order that firstly, the proposed order is in the best interests of the child and secondly, that it would be better for this order to be made than no order at all.
Under Section 11(2), the court may make an order to regulate the arrangements for maintaining personal relations and direct contact between a child under the age of 16 and a person with whom the child is not living. The wording is carefully designed to emphasise that the order will not confer an absolute ‘right’ to contact but will rather regulate the arrangements for contact between a child and any other person with whom the child is not living. Any parental “right” will always come second to the welfare of the child which is the paramount consideration for the Court.
This is known as a contact order and is used typically following parental separation to regulate the arrangements for the non-residence parent to see the child on a regular basis. There is no limitation as to who can benefit from this order. It could, for example, regulate contact between a child and their grandparent, sibling, other relative, friend, neighbour or any other person whose continued relationship with the child serves his or her welfare.
The court is given a great deal of flexibility to make an order if it is deemed to be in the interests of the child.
If the court is requested to make a contact order to a child the court will want to establish the child's views on the order sought. The court take into account, when giving weight to the child's opinion, the age and maturity of the child. If a child is very young or immature the child may not be in a position to give a view on the order sought. The court may appoint an expert solicitor to safeguard the child's interest and ascertain, informally, the child's views.
Read our latest blog 'Contact with children during lockdown - what are the rules for parents?'.
Contact actions are extremely common within the Courts in Scotland. At Livingstone Brown we deal with these matters on a daily basis. Please arrange to speak with one of our knowledgeable family team who will be happy to assist. Legal Aid can be obtained in certain circumstances to raise a contact action and, as one of the main Legal Aid providers in Scotland, we will be able to advise you fully in this regard.
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