When parents cannot agree on arrangements for a child’s upbringing, the next step is often sheriff intervention by way of raising a court action. Section 11 of the Children (Scotland) Act 1995 (“Act”) is the key provision that allows a court to make orders about children in family disputes. These are often called “section 11 orders,” and they cover a wide range of issues to resolve disagreements in the child’s best interests. Section 11 orders are made in relation to disputes between private individuals. In essence, a section 11 order can grant someone parental responsibilities and rights or have them removed, decide where and with whom a child will live, determine contact arrangements with family members, and address specific questions about a child’s upbringing.

What Does Section 11 Allow?

Section 11 empowers the court to make various orders relating to parental responsibilities and rights (PRRs) and other matters about a child. This means the court can formalise who has the legal authority and duty to care for the child, and resolve particular issues that parents or carers cannot agree on. Common situations include disputes over residence, contact, schooling etc.

Types of Orders Under Section 11

Section 11 allows the court to make a variety of orders depending on the situation. The main types of orders include:

• Residence Order – An order regulating with whom a child under 16 is to live. This determines the child’s primary home. The court can also order shared residence (e.g. the child lives with each parent part of the time – usually 50/50) if that is in the child’s best interests at the time. However, in practice, most sheriffs do not agree that shared care orders are in a child’s best interests, unless it is the status quo, and the child has been living in a shared care arrangement for some time (a year or more). This is because having two separate homes is usually not good for a child. A residence order does not remove the other parent’s parental rights of the other parent – it just settles the child’s living arrangements.
  
• Contact Order – A contact order is an order regulating the arrangements for maintaining personal relations and contact between a child and the non resident parent (or another person who shows and interest). A contact Order will state who the child should see and how often. The contact order can be quite detailed – specifying days, times, and any conditions to ensure contact is positive and safe for the child.
  
• Specific Issue Order – If a specific question or dispute arises about the child’s upbringing, the court can make a specific issue order to resolve it. This could be about matters such as what school the child will attend, what surname the child should have, whether the child can be taken abroad on holiday, or whether a certain medical treatment can go ahead. Essentially, any one-off issue or important decision that the parents (or others with an interest in the child) can’t agree on, can be settled by a specific issue order.
  
• Parental Responsibilities and Rights (PRR) Order – The court can grant PRRs to someone who doesn’t have them, or remove/restrict the PRRs of someone who does. For example, a father who never acquired PRRs (not married and on the birth certificate) can ask the court for an order giving him those parental rights and responsibilities. Conversely, in some cases a parent’s existing rights might be limited or taken away – for instance, to protect the child.
  
• Interdict – The court can issue an interdict to prohibit a specific action in relation to the child. This is essentially a protective order. For example, an interdict can stop someone from removing the child from Scotland or a local area without the consent of the other parent. Interdicts are used to prevent harm or abduction – e.g. stopping a parent from unlawfully taking the child abroad, or stopping contact between the child and someone who may pose a danger. A section 11 interdict can specify any act that is not to be done, and breaching it can have serious legal consequences.
  
• Guardianship Order – This order involves appointing or removing a guardian for the child. A guardian is an adult who would assume parental responsibilities if the parents are unable to care for the child (for example, if the parents have died or become incapacitated). Under section 11, the court can name a new guardian or remove an existing guardian. We discussed this in a previous article here.
  
• Judicial Factor Order – In situations involving a child’s property or finances, the court can appoint a judicial factor to manage the child’s property. A judicial factor is essentially a trustee or manager appointed by the court. This might happen if, say, a child inherits money or property and there’s no suitable guardian to manage it, or if there are concerns about how a parent is managing the child’s assets. The judicial factor takes control of the property and is supervised (often reporting to the Accountant of Court) to ensure the child’s property is safeguarded. We discuss this in more detail here and here.
  
• Interim Order – The court can make interim Orders (from the time an action is raised until the final settlement or decision at Proof) as needed while a case is ongoing. It is a measure that lasts until a final decision is reached. For example, at the start of a case the court might grant an interim residence order so the child has somewhere to reside while the case is ongoing. Interim orders ensure that there are some arrangements in place in the meantime, and they can later be replaced by a permanent or final order. They are especially useful in urgent situations, to provide immediate clarity and protection for the child.

The court has flexibility to tailor orders as it thinks fit for the child’s welfare – the list above covers the most common orders, but the court can craft the order to address the particular dispute at hand.

Who Can Apply for a Section 11 Order?

Typically, a child’s parents (who usually have PRRs) are the ones seeking section 11 orders, especially in divorce or separation cases. However, the law also allows other people with an interest in the child to apply, even if they don’t have parental rights. Grandparents, aunts, uncles, or even close family friends who have played a significant role in the child’s life can ask the court for an order if they “claim an interest” in the child’s welfare. XK Family Law Solicitors have assisted Grandparents and close relatives in obtaining contact with children. You need to demonstrate to the court that you have a legitimate interest in the child’s life.

A teenager can also seek an order to change living arrangements if they feel a current order isn’t working out, although such cases are not very common. Scottish law doesn’t set a strict age limit for a child applying – it depends on the child’s capacity to understand the process and make informed decisions (often around age 12 or older).

Additionally, people who previously had PRRs but don’t anymore are explicitly allowed to apply for orders under section 11. This could cover situations like a biological parent whose PRRs were removed by a court order or through an adoption. For example, if a child was adopted by a step-parent, the biological parent’s rights are extinguished by the adoption. However, that biological parent (being someone who “has had” PRRs in the past) can apply for a contact order. If the court can be convinced it is in the child’s best interests to have a person in their lives, ans that it will make the child’s life better than it is now, then an application for an court Order will usually be successful.

The court itself can make a section 11 order even if no one formally applied for one, provided there is a relevant case about the child already before the court. In other words, if parents are in court for something else (say a divorce or another dispute) and no one asked for a specific order about the child, the sheriff can still decide to issue an order on their own initiative. The court will do this if it appears necessary to protect the child’s welfare. For instance, a sheriff might notice during a divorce hearing that no formal custody arrangements have been made for the children and could issue a residence or contact order to clarify the situation, even if neither parent applied for it. This ensures that the child’s needs are addressed whenever the family is involved in court proceedings.

How Does the Court Decide?

When a court is considering making any order under section 11, it must put the child’s welfare first. The one question a court must ask before granting an Order, is… Is it in the best interest of the child? The child’s welfare is the paramount consideration. The sheriff will not make an order unless they are convinced it will benefit the child. In fact, the law explicitly says the court shouldn’t make any order at all unless doing so is better for the child than making no order. This is known as the “non-intervention” principle or no-order principle – essentially, if the parents can manage without court interference, the court should not intervene. An order will only be made if it’s truly necessary and advantageous for the child.

The child’s own views are also very important. The court is required to take account of the child’s opinion, provided the child is capable of expressing it and wishes to do so. In practice, the court will give a child an opportunity to express their views (taking into account the child’s age and maturity). If a child is willing and able to express an opinion, the court must consider those views as part of its decision. Indeed, an Initial Writ lodged with the court in a section 11 case must have a draft Form F9 attached unless there is good reason not to. A form F9 is sent to a child to allow them to share their feelings. A Child Welfare Reporter (an independent person, often a solicitor) might also be appointed to talk to the child and report back to the court. In some cases, if the child is comfortable, they might speak directly to the sheriff in chambers. The key point is that the child’s voice should be heard in a manner appropriate to their age and understanding.

In addition to welfare and the child’s views, the law (as updated by the recent Children (Scotland) Act 2020) now makes it clear the court must consider issues of potential harm or abuse when making decisions. This means the court will look at whether the child has been or could be exposed to any form of abuse, including domestic abuse, and what effect that has on the child. The court must ensure that any order protects the child from abuse or the risk of abuse, and it will examine how any history of abuse by a parent (or someone else the child would have contact with) might impact the child’s wellbeing. For example, if one parent has a history of domestic violence, the court will be very cautious in deciding on contact arrangements. The court might order supervised contact, or in extreme cases, no direct contact at all, to keep the child (and the other parent) safe. The judge will also consider the abusing parent’s ability to care for the child given that history, and whether that parent’s involvement would adversely affect the child’s welfare.

To summarize the guiding principles: the child’s best interests come first, the court intervenes only if necessary, the child’s views should be heard, and the child’s safety must be assured. All section 11 decisions are case-specific, but these principles provide the framework for every decision. The focus is firmly on the child’s welfare, not the parents’ wishes or rights.

Court Orders and Parental Rights.

One common concern is whether obtaining a court order takes away a parent’s rights or changes who is considered the child’s parent. Under Section 11, an order only removes or limits parental responsibilities and rights if the court explicitly says so in the order. In general, simply getting a residence or contact order does not strip either parent of their PRRs. For example, if a mother gets a residence order i her favour, the father doesn’t lose his PRRs just because of that order. The court order just clarifies how those rights will be exercised (e.g. when the child will stay with each parent).

Scottish law allows more than one person to have PRRs for a child at the same time. For instance, if a kinship carer (say, an aunt or grandparent) obtains an order giving them PRRs, that does not automatically remove the parents’ PRRs. This can result in several individuals sharing parental responsibilities for the child simultaneously.

Because multiple people can hold PRRs, the court order needs to delineate how decisions are made and resolve any potential conflicts. Day-to-day routine decisions are usually made by whoever the child is with at the time. The parent or carer with a residence order will naturally handle the child’s everyday needs and make routine choices (like what the child eats, bedtime, etc.). If a major decision arises (such as changing the child’s school or a non-emergency medical treatment), and both parents still have PRRs, they must consult each other.

In summary, section 11 orders do not inherently remove anyone’s parental status. They either adjust who has what rights and responsibilities or clarify how those rights are to be exercised. Any removal of PRRs must be expressly stated. It’s entirely possible after a section 11 case for a child to have, say, two parents and also a grandparent all holding PRRs – even with the grandparent having a residence Order and the parents having contact Orders.

Can Orders be Changed?

Yes. Section 11 orders are not necessarily permanent. The court retains the power to vary (change) or discharge (terminate) any order if circumstances change. As children grow older or if family situations evolve, an order that once worked might need adjustment. Either party (or anyone with an interest, as allowed by law) can apply to the court to have an order varied or recalled. The court will then reconsider the matter, again applying the welfare test to decide if the change is in the child’s best interests.

A final order isn’t truly “final” until the child turns 16 (or 18 for some rights) because the court can always entertain a request for variation.

Scottish courts usually require a material change in circumstances to review a final order. They won’t relitigate the same issues without good reason. But if something significant has changed (e.g. one parent relocates, or there are concerns about the child’s wellbeing under the current arrangement), the court can be asked to vary the order.

Also, as noted, section 11 orders can be made as interim orders during a case. Interim orders are by nature temporary and will either expire or be replaced by subsequent orders. Parties sometimes reach agreement and have an order by consent, or one parent might later agree to step back, resulting in an order being discharged.

In practice, if you have an order and you think it needs to be changed, contact us here at XK Solicitors and we can potentially file a minute to vary the current order with the court. The process will be somewhat like the initial case – the court will consider evidence and the child’s current welfare situation to decide on the new arrangement.

Because orders can be varied, there is a built-in flexibility… the court’s order is about the child’s welfare at the time of the decision. If circumstances change, the court can vary the order.

Enforcement of Orders (What if Someone Disobeys an Order?)

A Section 11 order, once made, is legally binding on the parties involved. This means both parents (or whoever is named in the order) are legally obligated to follow it. For example, if a contact order says the father is to have contact every other weekend, the mother must make the child reasonably available for that contact; conversely, the father must return the child at the agreed time – both must follow the terms exactly.

If someone ignores or breaches a court order, there can be legal consequences. Failure to obey (Failure to Obtemper) a section 11 order can be dealt with as a contempt of court, which is a serious matter. In Scotland, contempt of court can result in penalties like fines or even imprisonment in extreme cases where someone wilfully and repeatedly defies the court’s instructions. The person affected by the breach (say, the parent who’s missing out on contact) can bring the matter back to court to enforce the order by way of raising an action for Failure to Obtemper. The court has a range of enforcement options, it might issue a warning, order compensatory contact (to make up for time missed), or as noted, ultimately penalise the defaulter. For instance, if one parent consistently refuses to hand over the child for contact in violation of the order, the court could find them in contempt and impose a fine or require them to do unpaid community work, and in very rare, severe cases, imprisonment could be imposed, and it does happen. There are parents who believe they and only they can make decisions about their child. Some of these parents do end up serving time in prison. The current system relies on the civil contempt powers of the court.

If you have a section 11 order in place, you should abide by it to avoid legal consequences. As a parent, you are obligated to encourage and even persuade a child (but never force) to go to contact as Ordered. If circumstances arise that make compliance difficult (for example, the child refuses to go to contact, or an emergency prevents an exchange), the proper approach is to try to negotiate with your ex or seek a variation from the court, rather than just not following the order. The courts encourage cooperation, and wilfully disobeying an order usually backfires in legal proceedings.

Conclusion

Section 11 of the Children (Scotland) Act 1995 is a comprehensive framework that covers most private disputes about children in Scotland. It provides a one-stop legal mechanism to address where a child lives, who a child spends time with, who has decision-making authority, and how specific issues are resolved, always with the child’s welfare as the top priority. For anyone dealing with a separation or dispute involving children, understanding section 11 is crucial, it outlines both the types of orders you can seek and the principles the court will apply.

Ultimately, section 11 is about serving the best interests of children when families cannot reach agreement. It’s a powerful tool to have, but also one used with caution – the law makes clear that orders should only be made when truly necessary for the child. If you find yourself in a situation where a section 11 order may be needed, it’s advisable to seek legal guidance. XK Family Law Solicitors can help you navigate the process, whether you’re seeking an order or responding to one, always keeping in mind that the focus will be on what’s best for the child involved.

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