Father’s Day and fathers’ contact rights in Scotland: understanding the legal process

Father’s Day is a time to celebrate the important role fathers play in the lives of their children. Whilst many families will spend the day together, for some separated fathers maintaining a meaningful relationship with their children can be challenging. Where contact arrangements cannot be agreed, it is important to understand the options available under Scots law.

Although court action is sometimes necessary, it is rarely the first step. In Scotland, the emphasis is on promoting the welfare of the child and encouraging parents to resolve disputes wherever possible.

Reaching agreement through negotiation

Many disputes regarding contact can be resolved through negotiation with the assistance of solicitors. Family law solicitors can help parents discuss and agree practical arrangements for the frequency, duration and nature of contact. This can be achieved through an exchange of formal correspondence, through a series of informal meetings between parties and solicitors or through the collaborative process.

Negotiation often allows parents to retain control over the outcome rather than having arrangements imposed by a court. It can also help promote communication, preserve a positive coparenting relationship and avoid the stress, expense and uncertainty associated with litigation.

Solicitors may suggest mediation as an alternative to traditional negotiation or indeed litigation. Child inclusive mediation allows specially trained mediators to meet with children, where appropriate, to ensure their views and experiences can be heard within a mediation between their parents.

Where agreement is reached, it can be recorded in a Minute of Agreement. This is a formal legal document setting out the arrangements agreed between the parties.

Where agreement cannot be reached, court proceedings may be required.

Fathers, parentage and parental responsibilities and rights

Before considering court action, it is important to understand a father's legal status in relation to the child.

Many fathers will already have parental rights and responsibilities ("PRRs"). PRRs include important rights and responsibilities relating to the child's upbringing, welfare and development, including the right to maintain personal relations and direct contact with the child.

Where a father is named on the child's birth certificate or he is married to the child’s mother, he will generally already hold PRRs. In those circumstances, a court action will focus upon regulating contact arrangements rather than establishing parental rights.

However, some unmarried fathers may not be named on the birth certificate. In those cases, the father will need to demonstrate to the court that he has “an interest” in seeking contact with the child.

Where parentage itself is disputed, the father may first require to seek a declarator of parentage. A declarator of parentage is a court order formally recognising that an individual is the child's father.

Once an interest or parentage has been established, the court can then consider whether to regulate contact arrangements.

As with all cases involving children, the court's paramount consideration will be the welfare of the child and whether the orders sought are in the child's best interests.

Raising a court action in the Sheriff Court

The sheriff court local to where the child ordinarily lives is the forum in which most contact disputes are dealt with in Scotland.

The process begins by lodging an Initial Writ. This is the document that sets out the orders sought and explains why the proposed contact arrangements are considered to be in the child's best interests.

Once the action has been lodged, it must be formally served on the other parent. The defender usually then has 21 days to tell the court (and the applicant) if they wish to defend the action.

If the action is not defended

Although uncommon in contact disputes, some actions proceed without opposition.

Even where no defence is lodged, the court must still be satisfied that the order sought is in the child's best interests. Depending on the child's age and maturity, the court may still require to consider the child's views, commonly through a Form called an F9. This allows children of sufficient age and understanding to express their views directly to the court.

Affidavits are required from the father and supporting independent witnesses. An affidavit is a sworn written statement setting out the relevant facts and circumstances supporting the application and relevant to the child’s circumstances.

A Minute for Decree can then be lodged asking the court to grant the order sought. If satisfied that the child's welfare has been properly considered, the court may grant decree.

If the action is defended

Most contact actions are defended. Defences are lodged (setting out the formal response to the Initial Writ) and the case usually proceeds to a child welfare hearing or series of child welfare hearings.

At the child welfare hearing, the sheriff will attempt to establish the issues in dispute, explore whether agreement can be reached, or whether the court should regulate contact between the father and child by court order (a “contact order”). The sheriff will hear from the parties and their solicitors and may make an interim contact order or encourage further discussions. The views of the child are considered throughout the court process, depending on the age and maturity of the child involved.

Many cases are resolved at this stage without the need for a final hearing.

Where further information is required, the court may appoint a child welfare reporter. This is an independent individual, most often an experienced family law solicitor, who investigates the circumstances of the case. The reporter may meet with both parents, interview other witnesses and obtain the views of the child (depending on the investigations directed by the court) before preparing a report for the court and making recommendations regarding the best outcome for the child.

The purpose of the report is to provide independent information to assist the sheriff in determining what arrangements are in the child's best interests.

Proof

If significant issues remain in dispute, the court may fix a proof.

A proof is the Scottish civil law equivalent of a trial. Witnesses give evidence under oath and may be questioned by both parties' solicitors. The sheriff will consider all of the evidence, assess the credibility and reliability of witnesses, and determine what outcome best promotes the child's welfare.

The court may then make (final) orders regulating contact and, where necessary, parental responsibilities and rights.

The Court of Session

Although most contact disputes are dealt with in the sheriff court, proceedings can also be raised in the Court of Session. This is Scotland's highest civil court and generally deals with more complex or legally significant cases, including those involving international issues or questions of jurisdiction.

Weighing up the alternatives to establish or adjust the contact arrangements

Each family's circumstances are different. Whether through negotiation, collaboration, mediation or court proceedings, obtaining advice at an early stage can help fathers understand their options and work towards arrangements that support a meaningful relationship with their children. If you have any questions about fathers' contact rights, child inclusive mediation or the legal process in Scotland, we would be pleased to discuss the best options available for you.