Cases involving disputes over children

In permanence order proceedings where there is more than one child involved you only require to submit one application in respect of your client.  In the application you should give details of the child or children who are the subject of any proceedings.

When considering such cases, the child’s welfare is the paramount consideration.

Information that should be provided includes:

• Your client’s statement addressing: arrangements made for the child’s care, benefits for the child, child’s wishes and whether it is appropriate to take them into account, and child’s racial origin and cultural, linguistic and religious background, if appropriate
• Supporting information if available and, if not, an explanation for this
• Copies of any reports including any medical or social work reports.

If your client seeks an adoption order and the natural parent’s consent is to be dispensed with, you should show us that grounds for dispensation exist.

Applications for legal aid to oppose either an adoption order or permanence order will usually be granted because of the importance of the matter to both the child and the natural parents.  These orders change a child’s status for their whole life.

In cases of adoption by a step-parent, where there has been remarriage, only the step-parent need apply.  However, if both parents are adoptive parents then applications from both parties are needed.  Separate applications are needed for each child.

If the person to be adopted is of or over the age of 12 years, his or her consent to the order is necessary and direct evidence of this should be included in the legal aid application.

The Children (Scotland) Act 1995 gives guidance to the court in considering whether to make an order.  It must have regard to three principles:

• The welfare principle,
• The no-order presumption
• The views of the child.

Where a couple has divorced and one or both seek section 11 orders, this is done by minute in the divorce process even where no section 11 orders were granted at the time of divorce. (See Ordinary Cause Rule 33.44, McEwen v McEwen 2001 SLT (Sh. Ct.) 8, and sections 11 and 42(3) of the Family Law Act 1986).  Ordinary Cause Rule 33.65 makes similar provision for applications after decree in actions which are not actions for divorce.

All legal aid applications for orders relating to parental responsibilities and rights must:

• Address all the above principles
• Address the extent to which there have been negotiations to resolve the dispute
• Address attempts to limit the scope of the dispute between the parties
• Provide details why such these negotiations have failed (including providing copies of any relevant correspondence).
• If the child is subject to a supervision requirement, explain any conditions attached
• Address the practical effect of the order and why it is reasonable to grant legal aid
• Detail if the proposed court order conflicts with other types of order (for example, a child protection order or a parental responsibilities order transferring parental rights and responsibilities to a local authority).

As the welfare of the child is the court’s paramount consideration, your client’s statement must cover:

• Proposed arrangements for looking after the child
• How the proposed proceedings will safeguard or promote the child’s welfare
• Why it is necessary to bring proceedings
• Whether the child has expressed any views on the matter given the court may well consider the child’s views.

The statements provided should focus only on aspects directly linked to the child’s welfare. Issues of dispute, including those concerning the breakdown of any relationship between the parties should not be supplied as support to your client’s position.

Supporting evidence should be produced from:

• An independent witness speaking to the child’s welfare
• If applicable, reports from the Social Work Department, medical practitioner etc.

If no supporting evidence is produced, you should explain why not.

While the welfare of the child is the court’s paramount consideration, a father with parental rights (through marriage, agreement, court order or by registration as father on the birth certificate) generally has a right to contact as established in case law. This means the rights of the father should be balanced against the welfare principle in all applications involving fathers with parental rights.

Your client should make it clear that residence is in dispute. Information about threats or attempts to remove the children from your client’s care should be given. Details of the parties’ respective parental rights and responsibilities should be given. Details need to be given about all attempts made to settle the dispute without litigation. Any police or social work involvement on this issue should be detailed, including information about any protective orders affecting the child.

If a child is already in the care of your client, we do not need supporting evidence of the arrangements for the child’s welfare unless your client’s care of the child is recent or tenuous or it will alter the status quo.  If your client’s child is in the care of the opponent information should be given about the opponent’s ability to care for the child.

Defending a residence order

Your client’s statement should:

• Provide details of the current arrangements for the care of the child
• If a child lives with the opponent, set out what criticisms are made of their care and control of the child
• If a child is not living with the opponent, comment on the opponents proposals for caring for the child.
• Draw attention to any factors making it appropriate for the court to make no order at all
• Disclose the child’s views, if known and likely to carry weight.

You client’s statement must:

• Give full details about all attempts made to settle the dispute without litigation (providing copies of any relevant correspondence). Copy correspondence is not needed if we have granted special urgency cover to raise proceedings.
• Address whether mediation has been considered or attempted and details of this (unless we have granted special urgency cover to raise proceedings). This is not needed where there are allegations of domestic abuse.
• Provide information about why any contact offered is not sufficient and action is still needed
• Provide details of the arrangements for the welfare of the child during contact periods
• Show whether any contact is being granted and whether the contact sought is residential or non-residential
• Give details of when contact last took place and how much contact should be expected in future
• Show what attempts have been made to negotiate contact and the result

Your client should provide supporting evidence of the proposed arrangements for the child’s welfare during contact.  This is particularly important if it appears that they may have difficulty in looking after the child.

Where contact is taking place but your client is seeking more contact than likely to be deemed reasonable we will consider the overall reasonableness of the application.

Defending a contact order

Your client’s statement must:

• Specify whether the request for contact is being opposed fully or only in relation to the frequency of the contact sought.
• Explain why the pursuer’s proposals should be opposed
• Explain why contact is not is the child’s best interests
• When opposing contact in its entirety explain why. The prospects for success must be assessed and details about any previous contact and the court’s view on supervised contact should be given.
• Offer the child’s views, if known and likely to carry weight
• Give details of any existing contact arrangement.
• Detail why any previous arrangements for contact may have broken down
• Explain all attempts made to settle the dispute (providing copies of any relevant correspondence entered into between the parties).
• Address whether mediation has been considered or attempted. If it has been attempted, what was the outcome and why litigation is necessary. This is not needed where there are allegations of domestic abuse.

Your client’s statement must explain exactly which responsibilities and rights are to be removed.  A statement from an independent witness, or a report from the Social Work Department or medical practitioner, should support this.

Defending an order removing parental responsibilities and parental rights

Your client’s statement should address why the order sought by the pursuer should be opposed.  The statement should show to what extent parental responsibilities and rights have been exercised until now.

When sought in conjunction with other orders your client’s statement should address why this order is necessary as well as the other(s).  The need for the order should be addressed together with details of attempts made settle matters.

Defending an order imposing parental responsibilities and parental rights

Your client’s statement should:

• Explain why the order should be opposed
• Comment specifically on the pursuer’s averments
• Highlight factors showing why it would be appropriate to make no order
• Give the child’s views, if appropriate.

Your client’s statement should:

• Give details of the order sought
• Address why such an order should be granted with reference to the three principles set out in section 11(7)
• Show the matter in question cannot be dealt with by any other statutory provision

Defending a specific issue order

Your client’s statement should show why the order sought should be opposed with reference to the welfare of the child, the fact that no such order is required and the child’s views, if appropriate.

Your client’s statement should:

• Give details about any change or changes in circumstances which warrant the variation together with details about attempts to resolve issues without litigation
• Address the welfare of the child

A supporting statement or other form of supporting information should be provided together with a copy of the interlocutor to be varied.

Your client’s statement should:

• Give full details of the difficulties that need to be addressed by the court
• Give information about all attempts made to settle matters without the intervention of the court

A supporting statement or other form of supporting information should be provided together with a copy of the order to be obtempered.