Parental Rights and Responsibilities in Scotland – A Helpful Guide
When a relationship ends there can, on occasion, be disputes over the care of a child or children. The overriding principle is that the welfare of the child is paramount. Whilst this are of law can be complex to navigate Walker Laird’s family lawyers in Paisley have considerable experience in dealing with these types of cases.
We understand that a child is the most important part of a parent’s life. The care arrangements for that child are a sensitive matter and we understand for many people it can be an emotional and overwhelming experience having to consult a lawyer regarding the care arrangements for a child.
Many parents wish to know their rights in relation to their child. If the parents of the child are married then both parents will have equal rights and responsibilities. If the parents of the child are not married, the father of the child will need to be registered as the child’s father on the child’s birth certificate in order to have parental rights and responsibilities.
So what does that mean? Let’s start with parental rights. Your parental rights are your right to :-
- have the child live with you or to decide where the child should live;
- to control, direct or guide the upbringing of the child;
- to maintain a relationship with the child and have direct contact with the child if the child is not living with that parent; and
- to act as the child’s legal representative.
Things can get difficult when each parent, who have the same rights, wish to exercise them differently. One parent may wish for the child to live with them and the other may wish for the child to live with them. In those circumstances, our family lawyers in Paisley and Renfrew, can assist by writing to the other parent to try and discuss matters with the hope that an agreement can be reached. One question we are regularly asked by clients is how often am I entitled to see my child? There is no set number of days provided for by law. The law states that any arrangement made regarding the care of the child must be an arrangement that is in the best interests of the child. It is not what is best for the parents.
If agreement still cannot be reached through correspondence, then it may be the case that a court action has to be raised and the Sheriff will make a decision about what he or she thinks is best for the child. That is always a last resort as it removes the control of the care of the child from the parents and puts the control into the hands of a Sheriff. Our family lawyers in Paisley and Renfrew regularly appear in Courts throughout Scotland and have many years of experience in this area.
Now lets talk about responsibilities. If you have parental rights, you also have parental responsibilities. These include:-
- Safeguarding and promoting the child’s health, development and welfare
- Providing the child with direction and guidance
- Maintaining personal relations and direct contact with the child on a regular basis if the child is not living with one parent; and
- To act as the child’s legal representative.
Parental responsibilities are very important. It is important to note that a parent must exercise their parental responsibilities in order to exercise their parental rights. Simply having rights is not always enough to exercise them. Rights and Responsibilities come hand in hand with one another. If one parent is failing to exercise responsibilities over a child the other parent may make an argument that that parent’s rights should be limited or restricted. In extreme circumstances, an application can be made to the court to remove a parent’s rights and responsibilities.
No two cases involving the care of a child are the same. Each case needs to be discussed in detail with one of our family lawyers in Paisley or Renfrew who will give in depth tailored advice. We offer a wide range of funding options including legal aid and payment plans. We can provide you with helpful and practical advice to ensure the best outcome for your child. Get in contact today!
Lord Carloway’s guidance in respect of child contact during Covid-19
Here at Walker Laird we understand that sharing the care of a child in the current circumstances of Covid-19 can be difficult and stressful. Every parent or carer of a child is required to put the health and safety of the child at the forefront of any decision regarding the care of the child. The Lord President, Lord Carloway has published a number of points that parents and carers whose children are subject to court orders should consider when making decisions about the care of a child. These include:
- Parental responsibility for a child who is the subject of any order relating to parental responsibilities and rights made by a Scottish court continues to rest with the child’s parents or carers and not with the court.
- It is expected that all those caring for children will act sensibly, safely, and in line with Scottish government and UK government guidance.
- Specific UK government guidance for families establishes an exception to the general stay at home requirement for separated families. It explains that “If you and your partner live in separate homes but take turns to look after your children, you can continue to do this”. This does not mean that children must be moved between homes. If there is a court order or formal agreement in place, you should try to stick to the arrangements it sets out unless you and the other person with parental responsibilities and rights agree to vary these. If you have a more informal arrangement with the other parent or carer, you should discuss how best to approach the situation and make a decision on whether a child is to move between homes after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.
- Even if a parent thinks it is safe for contact to take place, the other parent or carer may, entirely reasonably, be concerned about this. At such times, communication between all parties is key to managing the situation and agreeing a sensible, practical solution.
- Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a court order relating to parental responsibilities and rights should be temporarily varied, they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.
- Where parents do not agree to vary the arrangements set out in a court order, but one parent is sufficiently concerned that complying with the court order would be against current government advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the government guidance in place at that time, together with any specific evidence relating to the child or family.
- Where, either as a result of agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the court order, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent safely, for example remotely – by Face-Time, WhatsApp, Skype, Zoom or other video connection or, if that is not possible, by telephone.
- Information regarding court hearings and urgent business can be found on the Scottish Courts and Tribunal Service website. No non-urgent business is currently being dealt with in court. For the avoidance of doubt, non-urgent child welfare hearings are not proceeding in court. In urgent cases, the court will consider an application for one to be fixed, but will have to be satisfied that it is essential. For child welfare hearings that do proceed, the normal rule is that parties must attend child welfare hearings except on cause shown – the Coronavirus Crisis will automatically be accepted as appropriate cause shown and parties are not required to attend child welfare hearings in person at this time.
Contact Us
If any parent or carer of a child has any questions at this difficult time regarding the care of a child, then please do not hesitate to contact our David Forbes on 0141 887 5271 or alternatively please complete our online enquiry form.
The inevitable disruption for families
During what is undoubtedly an uncertain time, we’ve been working hard to ensure our clients are still receiving the exceptional level of service we always strive to deliver.
While the world is feeling unsettled, we started to think about our existing clients going through a change in their family life, which brought us to those families dealing with divorce and separation.
For every family, co-parenting is different, and it can often be difficult to manage at the best of times.
Understandably, tensions are high for everyone but especially for those with slightly different family setups. For those going through divorce proceedings, are separated and/or sharing custody of their children, the current circumstances can prove very stressful.
So how do you navigate your family through the uncertainty?
By uncertainty, we mean with regards to any possible changes to our health but also in our work/living situations. As it stands, many of the UK population are moving towards remote working, while also being met with the Government’s decision to close schools, which sees mothers and fathers taking on more than just the role of being a parent.
In usual circumstances, your time at home may be dedicated to being just that but at present, we also need to dedicate time to our professional roles, all from the very familiar setting of our own homes.
Divorced/Separated parents
For those couples who are divorced or separated, not living together and sharing custody, the main problem you may encounter is ensuring you are both able to work remotely (or still go to your place of work) while managing your respective time with your children.
One important thing to consider is Government guidelines on distancing and isolation and of course, your own specific circumstances will determine how you manage your existing arrangements, which may or may not need to change.
Depending on your job, for example if you work in healthcare or are considered a key worker, your working hours may have changed and may require more support from your ex-partner.
Likewise, if you have been told to isolate, you may also require assistance to ensure minimal change to your family’s routine.
If you’re unsure of how to handle this, we would be happy to help you find a solution.
Separated couples living together
This can certainly be an intense living arrangement without any added pressure and while you may be feeling more unsettled at this time, it is important to minimise any further disruption to your family’s life.
Another factor to consider is the likelihood that whether you live with your ex-partner or not, neither of you will be able to rely on help from grandparents at this time, as they are considered to be at higher risk during the outbreak and have been advised to self-isolate.
At this time, postponements to court dates are also somewhat inevitable and we recognise how this may impact you. We understand that as tensions may rise, you may require the support of a mediator to navigate you towards a solution which suits everyone’s needs.
As always, our focus is on finding solutions for our clients which avoid disruption, suits everyone’s specific needs and is ultimately the best possible outcome for everyone involved.
We understand that at this difficult time you may need more support than usual and we want to assure you that we are still here and working to make stressful situations in your life a much lighter burden to carry.
Divorce or Separation – what’s the best way forward?
Many marriages, civil partnerships and other cohabitation arrangements end in separation, and in the case of marriage, divorce. Trying to reach a resolution of the issues between the parties can be extremely difficult. In a high number of cases, solicitors will be instructed to help achieve this resolution.
It’s not all court proceedings and “he said this and she said that”! There are a number of options available to “manage” how the parties can achieve a resolution. In this article we’ll look at these options.
Each party has rights on separation or divorce and some of these conflict. Once a client has been advised of those rights, they may take a very different stance from that taken before they sought legal advice. Solicitors will give clients advice based on the law.
Solicitors don’t make decisions for clients and only take actions based on discussion with and instructions given by the client.
When parties separate, they have various options available to resolve issues between them. Those issues are likely to involve children, money and assets. The different needs of the parties will impact on the shape of any resolution.
When parties separate, their first instinct is to protect their position. They normally seek advice about this from a solicitor. At the first point of contact with a solicitor, the options available to resolve the issues should be set out. The main options are Solicitor Negotiation, Collaborative Practice, Mediation, Arbitration or Litigation.
Solicitor Negotiation
Until recently, this was the most common form of resolution. Each party would instruct his or her own solicitor. After receiving instructions, one solicitor writes to the other party’s solicitor setting out the client’s position and seeks information about the other party’s position. The other party’s solicitor takes instructions and then replies setting out the other party’s view. This is then explained to the client and further instructions are sought. This process and exchange of letters repeats itself until an agreement is reached between the parties. The terms of the agreement are set out in a Minute of Agreement once an agreement in principle has been reached. Both parties sign the Minute of Agreement. That agreement sets out the arrangements between the parties and is binding on both parties. If an agreement cannot be reached, the next option is usually litigation.
There are, however, three alternative methods of reaching an agreement between the parties that can lead to a quicker and, perhaps, cheaper and more equitable settlement – Collaborative Practice, Mediation or Arbitration.
Collaborative Practice
Again, each party will have his or her own solicitor. In this case they will sign up to a collaboration agreement committing themselves to settle the issues between them without resorting to the courts.
Both parties and their solicitors will be present at meetings. The parties will set out and discuss the issues between them, look for solutions to the problems facing them and attempt to reach an agreement across all these issues. If further information is needed, third parties can be asked to attend and supply information or give advice to the parties in the meeting – a common instance of this would be specialist financial advice.
Outwith the meetings, each of the parties will be advised separately by their solicitors. What takes place in the collaborative process is confidential with the exception of any financial information which may be used outwith the process.
Once an agreement is reached between the parties, it is then reflected in a Minute of Agreement that then becomes binding on the parties.
If matters cannot be resolved and one of the parties decides to seek a resolution through litigation, then the solicitors involved in the collaboration cannot then represent the parties in the court proceedings.
Mediation
Mediation is another alternative means of resolving issues between the parties. Again, whilst each party will have his or her own solicitor, they agree to appoint a Family Mediator to mediate arrangements between them. The Mediator doesn’t represent either of the parties but seeks to work with the parties to resolve the issues between them and to help them reach agreement on what should be done. This normally involves a series of meetings with the parties. The Mediator will provide a summary of the mediation and when it is successful, a Minute of Agreement can be prepared reflecting what’s been agreed in the Mediation. This will be binding on the parties. As in the collaborative process, confidentiality is preserved except in relation to financial information which can be used outwith the process.
Arbitration
This is perhaps the latest of the alternative dispute resolution options available to the parties. Arbitration can be used where there is an issue of principle between the parties that cannot be otherwise resolved using Collaborative Practice of Mediation. Examples of this might be what the relevant date of separation is, how much maintenance should be paid, what the matrimonial assets are worth or the resolution of specific matters in relation to the children. These are just some examples of the types of things that can be decided by arbitration.
The parties, assisted by their solicitor and, sometimes, the arbiter, set out the scope of the arbitration and put that into an Agreement to Arbitrate. The arbitration process and timescales are agreed. For instance, are there to be only written submissions or oral submissions and/or evidence or both?
Once the arbiter has made a decision, it is then binding on the parties as agreed in the Agreement to Arbitrate.
Collaborative Practice and Mediation have the parties at the heart of the whole process with the focus on the best outcome for all involved. Arbitration tends to focus on specific issues in dispute between the parties. These methods of dispute resolution can also provide solutions that would not otherwise be available to the courts if the parties had to resort to litigation.
There are obviously circumstances where Collaborative Practice, Mediation and Arbitration are inappropriate, for instance, where there are concerns about the welfare or security of the children or where there is an element of domestic violence, and the only options available are solicitor negotiation or litigation.
Litigation
Finally, if all else fails, the parties can resort to the courts who will then hear the facts and circumstances and impose a ruling that it binding on both parties. Litigation can be lengthy and expensive and, sometimes, delivers a resolution that neither party is happy with.
Contact our experienced family lawyers
If you find yourself in the unfortunate position of separating from your spouse or partner and require our help, call us on 0141 887 5271 (Paisley) or 0141 886 5678 (Renfrew)
Separation and Divorce – what are my rights?
Life is never straightforward! When couples are considering separation or divorce, they are likely to face a wide range of issues. Emotions of hurt and anger, though understandable, must be kept in check at this very difficult time.
Although it is extremely difficult to take the emotions out of the situation, one way of doing this is by putting a Minute of Agreement into place. If you do this, you will be able to set down clearly what has happened up until now and what is to happen in the future. It will also deal with the practical matters such as what happens to the children, money, assets and debts.
The financial aspects of your separation will involve a valuation of your matrimonial assets. When dealing with these you will need to address the following issues:
- You need to work out the legal date of your separation. Silly though this may sound, this is the date on which you actually separate. This is the date on which most matrimonial assets and debts are valued.
- The law isn’t interested in apportioning “guilt” and this will not impact on any settlement.
- Even if the family home is owned by one spouse, the other spouse can legally remain there until the marriage ends.
- If you try to sell your home while your spouse remains living there, you will need his or her consent to the sale. Any purchaser cannot force your spouse to move out.
- Matrimonial property is anything that is owned by the parties that has been acquired after the date of marriage but before the date of separation.
- Inherited property and gifts are not matrimonial property. However, if you use your inheritance to buy an item for use in the marriage, that item will then become matrimonial property.
- If you acquire your home before marriage, with the intention of it being the matrimonial home, it will be classed as matrimonial property.
- Debts usually remain with whoever acquired them. Joint debts such as a mortgage are divided equally.
- All assets and debts need to be valued. This might mean involving surveyors and other professionals to conduct the valuation. If an asset is inherited, you will need to provide evidence of the inheritance.
Having dealt with the valuation of the actual assets and debts, we now need to consider how these are properly dealt with. This gives rise to another set of issues you need to address:
- The law says matrimonial property should be shared fairly. The net value of the property is calculated and split. This is usually an equal split. However, if special circumstances can be shown, this might not always be the case. If you own more matrimonial property than your spouse, a balancing payment will have to be made.
- If there are circumstances where an equal division would be unfair, we will help you assess those circumstances and work out if that might warrant an argument for a greater share in your favour.
- If you have been economically disadvantaged by the marriage – for example, by taking a career break to raise children - you might be able to claim or agree a capital payment as compensation.
- If there are children under 16 and you are their main carer, you might be able to agree (or a court might order) the matrimonial home to be transferred to you to allow the children to remain there.
- A court might award you periodical allowance for a short period to allow you to re-train in a new job or career.
- You must put your feelings to one side and make residence and contact arrangements. These must consider the best interests of your children. A court may take your children’s views into account. If no agreement can be reached the court can impose appropriate arrangements.
- Any arrangements made during separation may need to be changed as your children get older (this can be built into any Minute of Agreement).
- There may be a need for Aliment. This is a payment that arises out of an obligation to reasonably support your former spouse and your children. This takes into account your needs and resources, your earning capacity and other relevant circumstances.
- Conflict of interest rules mean it is not appropriate to have the same solicitor representing your spouse and representing you.
- Negotiations between solicitors will normally take the form of letters sent back and forth and/or meetings between them. You and/or your spouse may or may not be present at these meetings.
- Once an agreement is reached a Minute of Agreement is signed and registered in the Books of Council and Session.
- Be patient – it can take some time to reach a negotiated settlement.
Contact Us
We appreciate that this is a very difficult time for clients where emotions tend to run high. Please don’t give over things you don’t have to or accept less that you’re entitled to. Please do take independent legal advice before signing anything. If you need to talk to someone then please contact us. You can be assured that our experienced team will handle your query with sensitivity and in the strictest confidence. You can contact us on 0141 887 5271 (Paisley) or 0141 886 5678 (Renfrew).
Inheritance Tax – Residence Nil Rate Band
A new Inheritance Tax allowance comes into force on 6th April 2017. This will apply to property left to direct descendants. The Residence Nil Rate Band, as the new relief is called, means that from this year, a new tax free allowance will apply to a property left by a deceased person to a descendent. If there is more than one property in the estate, the executor can decide which property is to be allocated for this purpose.
This allowance starts at £100,000 and will rise in £25,000 blocks over the next 4 years until, in the tax year 2020/21, it will stand at £175,000. If the property is held in joint names of a married couple or civil partners, each of the parties enjoys this relief - and it’s transferrable from one to the other on death if it’s not been used up.
Here are the basic rules. The Residence Nil Rate Band will apply if the:
- individual dies on or after 6 April 2017
- individual owns a home, or a share of one, so that it’s included in their estate
- individual’s direct descendants such as children or grandchildren inherit the home, or a share of it, and
- The value of the estate isn’t more than £2 million
Direct descendants include, the children, grandchildren and further lineal descendants of the deceased. They also include the spouse or civil partner of a direct descendant. Also included are step children, adopted children, fostered children and children of whom the deceased was guardian. You can find an outline of what are considered to be descendants on the HMRC website. You can click here to view this information.
Direct descendants don’t include nephews, nieces, siblings and other relatives who aren’t included in the list above.
The Residence Nil Rate Band is in addition to the current Inheritance Tax (Nil Rate Band) threshold of £325,000. This is also transferrable between spouses or civil partners if it is not exhausted on death.
The total Inheritance Tax allowances available to married couples and civil partners from the tax year 2020/21, will be £1 million – and after that the allowances will increase in line with inflation (as measured by the Consumer Price Index).
There are a number of helpful case studies on the HMRC website ranging from the most simple and straight forward to the very complicated. You can view those case studies by clicking here.
Interestingly, if one spouse or civil partner dies before April 2017(whether or not they owned a share of the property or had already passed a share to children), the survivor will be able to use both of their family home allowances when he or she dies.
If you have a Will, you need to make sure it’s up to date so that you can take advantage of this tax-free allowance. If you don’t have a Will, you need to make one now to ensure you can decide who will benefit from this allowance.
Inheritance Tax planning is a complex process and we recommend this be undertaken by an expert in this field.
Get In Touch
Contact us on 0141 887 5271 (Paisley) or 0141 886 5678 (Renfrew).
Remember the children
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Putting Your Trust In Asset Protection
We’re sure that as you look forward, your wish is for your assets to be passed to your children, grandchildren, or other loved ones, but many of our clients often worry about how these assets will be managed should they require full time or residential care.
We recently discussed granting Power of Attorney and the possibility of someone else managing your finances, property and personal welfare, should you not be able to do so. This is particularly useful for those who experience significant life changes, leaving them somewhat incapacitated.
Another way in which you may look to protect your assets is through Asset Protection, which is something you may look to set up while you are still capable of doing so, as it allows you more individual control.
For those concerned about their assets being used to fund any form of care they may need in the future, Asset Protection may be the preferred option.
Setting up Asset Protection in the form of an Family Protection Trust, would allow you control over the management of your assets, should you go into care. Organising this at an early stage will allow for sufficient planning, in terms of protecting your main assets, such as your home.
Placing these assets within a trust protects your family’s inheritance from unscrupulous creditors, unforeseen circumstantial changes, or any liabilities that may arise, which in today’s economy are somewhat likely. It also allows you to decide if and when these assets should be transferred from the trust to certain beneficiaries.
While you are in control of this Trust, you must also appoint at least one other Trustee, who is therefore also responsible for any assets being held within it.
Here at Walker Laird we believe Future Planning is very important and we are happy to offer a free of charge future planning review, to discuss the best choices for yourself and your assets.
Get In Touch
If you would like to explore your options, please call 0141 887 5271, we will be happy to arrange a suitable time to have a chat.