In circumstances where a contentious dispute arises in relation to a child, a court order may be required to resolve the issue. Whether the issue relates to school, holidays, relocation or medical intervention, here are the "specifics" on specific issue orders.

Often family lawyers talk about specific issue orders, but what specifically are these? A specific issue order is a court order dealing with a specific question which has arisen, or may arise, in relation to parental rights and responsibilities, guardianship or the administration of a child's property. The law dealing with specific issue orders can be found in section 11(2)(e) of the Children (Scotland) Act 1995. Specific issue orders generally deal with issues where there is a definitive either/or element, for example to relocate with a child or not.

Who can apply for a specific issue order?

Anyone with parental rights and responsibilities for a child may apply for a specific issue order in relation to a child under the age of 18. Some may, however, be surprised to learn that it is also open to anyone who has an interest in the child to seek such an order; this may include grandparents, siblings, other relatives, or medical practitioners.

What will the court look at when making its decision?

The paramount consideration of the court will always be what is in best interests of the child. The court will take account of all the evidence before it and the decision will be based on whether it is in the best interests of the child to make such an order. The court will also examine if it is better that the order is made, than none made at all. The court also requires to take into consideration the views of the child if the child is capable of forming a view and wishes to express a view.

Examples of when a specific issue order is made

1. Taking a child or children out of the country on holiday

    Many separated parents do not realise that they must have the consent of the child's other parent (if that parent has parental responsibilities and rights) before taking their child out of the UK. Of course, if only one parent or guardian has parental rights and responsibilities, only that person's consent is required. However, if an individual fails to obtain the permission of both parents, or if one parent fails to obtain the consent of the other, they may be in breach of Hague Convention on International Child Abduction. If parents cannot agree on holiday arrangements, a specific issue order is required. Courts will generally grant specific issue orders for holidays, unless there is genuine concern for the safety of the child, concern the child will not be returned or the child expresses a view that they do not wish to go, and that view is held to be determinative.

    2. Schooling

    Where a dispute arises over which school a child should attend, a specific issue order may be required. This may also be an issue if one parent insists that a child should be educated in a faith school and the other strongly disagrees. Again, what is in the best interests of the child will determine the issue taking into account the child's views. These are often very difficult cases for a court to decide.

    3. Medical treatment

    Many will recall the insightful novel, The Children Act, in which a judge (made famous by Emma Thomson in the film of the same name) had to make a life-or-death decision about the treatment of a teenage boy whose religious beliefs, and that of his parents, forbade blood transfusion. Whether a child should receive medical treatment, a vaccine or whether no treatment should be given at all, are some of the mist difficult decisions a court may have to make. The court will consider the opposing parties' arguments and will rely upon expert medical opinion in relation to the specific medical treatment. Again, the best interests of the child and, depending on whether the child is capable of understanding the nature and consequences of the medical treatment, some weight may be given to the child's views.

    4. Relocation

    Where one parent wishes to relocate out with the UK and the other parent does not consent, a specific issue order will be required. And in recent cases, although relocating within the UK does not in strict law require the consent of the other parent, best practice demands that a specific issue be sought of that consent is not forthcoming. The court will make its decision based on a range of factors including, what arrangements have been made for the child's schooling, how effectively contact be achieved between the child and other relevant people in their life including the other parent and what benefits there are to disrupting the status quo.

    How to avoid the requirement for a specific issue order?

    When it comes to making arrangements for children, generally litigation should be a last resort when all other avenues have been explored and dismissed. To avoid the need to apply for a specific issue order, parents can attempt to reach agreement by other means such as Collaboration and Mediation. If agreement is reached a Minute of Agreement can be prepared to deal with a range of matters, such as schooling and holidays. A Minute of Agreement can provide parties with a degree of certainty on how certain issues will be dealt with going forward.

    Mediation and Collaboration can help parties resolve high conflict issues in a constructive child centred manner. Specialist trained family law mediators can help parents resolve matters in dispute and can also help improve communication overall. But where specific issues are at the heart of the dispute ligation is often the only way in which the matter can be resolved

    Brodies has a number of specialist accredited family law mediators and trained Collaborative lawyers available to assist clients and offer a fixed fee mediation package. If you would like more information about family law mediation or any of these specific issues, please get in touch below.


    Eildh McRitchie-Conacher

    Senior Solicitor