Deciding where a child will reside after parents separate is a major issue for families. In Aberdeen and throughout Scotland, residence disputes are governed by principles that have been refined by the Children (Scotland) Act 2020. Here we explain the changes that the 2020 Act brings to the Children (Scotland) Act 1995 and residence cases. Whether you are seeking a residence order, responding to one, or trying to work out an arrangement amicably, it’s important to know how the law now approaches these decisions.
Welfare Always Comes First
Scottish courts have long been guided by the paramountcy of the child’s welfare, and the 2020 Act reaffirms this in clear terms. When a court in Scotland is asked to decide who a child should live with (or to make any order about parental responsibilities), the child’s welfare is the paramount consideration. This means the sheriff will focus entirely on what arrangement will best meet the child’s needs and promote their well-being, not what either parent wants or feels entitled to. The court will consider factors like the child’s emotional needs, stability, schooling, wider family connections, and so on. A key point to note is that there is no automatic preference for either mother or father under Scottish law; the decision is based on practical and emotional welfare considerations for the specific child. In practice, the courts are in favour of very young children residing with the mother. By restating this principle in the new Act, the law highlights that nothing outweighs the child’s welfare – it is the “golden thread” in all decisions.
Hand-in-hand with the welfare principle that if an Order is not in the interests of the child then “no order” should be made, which the 2020 Act embeds in residence matters. The court will not make a residence order (or any section 11 order) unless it believes that having an order is better for the child than having no order. In simple terms, if parents can sort out living arrangements by agreement, the law prefers that no court order be made. The court isn’t there to micro-manage family life or pick sides; it intervenes only if doing so will improve things for the child. This is meant to discourage unnecessary litigation and encourage parents to resolve disputes cooperatively when possible. But if you cannot agree and it comes before a court, the sheriff will make an order, yet only one that they believe benefits the child more than the status quo of no order.
The Child’s Opinion Matters in Residence Decisions
One of the ground breaking aspects of the 2020 Act is the removal of the age-12 threshold for considering a child’s views. Now, a Sheriff must give every child a chance to express their views on where and with whom they want to live, irrespective of the child’s age. The law presumes even younger children can have a perspective on their home life. How the child’s opinion is collected will depend on the child’s preference, it could be through a conversation with a child welfare reporter, writing down their thoughts, or speaking directly to the court in chambers, among other methods. In practice, the older and more mature the child, the more heavily their wishes might influence the outcome. The overarching goal is that children are participants in, not just subjects of, decisions about their lives.
It’s worth noting that while a child’s preference is important, it is not the sole deciding factor – the court won’t automatically decide based on the child’s choice if the judge believes the choice would not actually serve the child’s best interests. For example, a young child might say they want to live with a parent who is more lenient or fun, but the court will also consider which environment provides better care, consistency, and support.
Addressing Abuse and Conflict in Residence Cases
The Children (Scotland) Act 2020 brings a sharper focus on protecting children from harm in the context of residence and custody decisions. The court must specifically consider whether any abuse has affected the child or might affect them, and how that should influence living arrangements. If one parent has a history of domestic abuse, this will weigh heavily in the decision of residence. The judge will examine that parent’s capacity to meet the child’s needs and provide a safe home environment in light of their past behaviour. They will also examine whether placing the child with that parent could expose the child or the other parent to further abuse or distress. The law is clear that shielding the child from abuse or risk of abuse is paramount. This doesn’t mean accusations automatically deprive a parent of contact or residence, but it does mean such allegations are taken seriously and examined under the new statutory factors.
Additionally, the Act considers high-conflict situations. It asks whether ordering two parents to cooperate on raising the child is appropriate in the circumstances. Where there’s been serious conflict or abuse, the court might conclude that expecting cooperation (for example, joint decision-making or frequent handovers for shared custody) would not be in the child’s best interests. In such cases, the court may structure the order to minimize direct contact between warring parents – for instance, having exchanges happen via a neutral third party, or allocating sole decision-making to one parent on certain issues, to spare the child from exposure to parental fights. The emphasis is on creating a stable, calm environment for the child.
Resolving Disputes Amicably
Finally, it’s worth noting the broader push of the 2020 Act toward less adversarial resolutions. Court battles over children can be emotionally draining and damaging. The new law encourages the use of Alternative Dispute Resolution (ADR) methods – such as mediation, collaborative law, or arbitration – to sort out residence and contact issues out of court if possible. In fact, the Scottish Government is mandated to ensure funding is available for ADR in family cases, so that parents have an opportunity to reach agreements in a more cooperative setting.
Conclusion: A Child-Centered Future
The Children (Scotland) Act 2020 significantly updates the legal landscape for residence (custody) and contact matters. To recap the key takeaways for parents in Aberdeen: the child’s welfare and safety are paramount, the child’s own voice will be heard more than ever, and the system is adapting to better protect families from abuse and conflict. The reforms aim to ensure decisions about who a child lives with are made with great care, humanity, and respect for the child’s rights. If you are facing a dispute over residence or contact, it is crucial to get informed advice on how these changes might apply to your case. Our family law solicitors in Aberdeen are ready to help you navigate this new era of Scots law, keeping the focus on what truly matters – the well-being of your children.
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