A Guide to Section 11 Orders: Children Orders in the Scottish Courts

Whilst it is always preferable that parties or parents can agree the arrangements for their children upon a separation, this is not always possible without assistance and guidance. Disputes involving children can be difficult and stressful, causing anxiety both for parents and for the children involved.

Parents and parties are generally encouraged to talk to each other and make every effort to agree the care arrangements and resolve any issues in dispute. If talking to each other is difficult, they can ask for help either via their solicitors or through alternative dispute resolution options, such as mediation, family therapy, or arbitration.

If parties or parents cannot agree, the Court can be asked to resolve the dispute. Orders can be made under Section 11 of the Children (Scotland) Act 1995 in order to resolve disputes.

Orders granting or restricting parental rights and responsibilities

A parent has in relation to his child a responsibility: 

1. to safeguard and promote the child’s health, development, and welfare;
2. to provide in a manner appropriate to the stage of development of the child
   i.  direction.
   ii.  guidance to the child;
3. If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and
4. To act as the child’s legal representative.
   
   but only so far as compliance with these responsibilities is practicable and in the interests of the child.
   Corresponding parental rights are also granted to enable a parent to fulfil his parental responsibilities as outlined above.

Learn more about parental rights and responsibilities in Scotland.

If a parent does not have parental rights and responsibilities, they can ask the Court to grant them in their favour.

If a parent does have parental rights and responsibilities the other parent can seek to have those restricted or deprived entirely.

Contact orders

This specifies who a child should have regular visits or communications with. This can include direct or indirect contact which includes letters, cards, text messages or electronic means such as Facetime, Skype, WhatsApp.

Residence orders

These regulate with whom a child should reside. It is possible to obtain a shared residence order as it is more generally accepted that parents should in most cases share the care of a child. Such an order would specifically state the arrangements to avoid future disagreement.

A contact order, or residence order, does not restrict a parent’s parental rights and responsibilities, although in practice the parent with whom the child generally resides is more able to determine the child’s normal day to day arrangements, provided the arrangements do not conflict with any order of the Court.

Specific issue orders

Specific issue orders can be sought to regulate a variety of issues which may be in dispute. For example, the Court might rule on whether a child should undergo a particular medical treatment, the school the child should attend, whether the child should be allowed to be taken on a holiday outside the UK, which religion the child should follow and the name a child should be known as.

Interdicts

These protective orders may be made to prevent a child being removed from a particular Sheriff Court area or from Scotland. Such orders can also prevent a parent having any contact, communication or taking specified steps of any kind.

An order could also include an order for delivery if one parent has retained or removed the child and it would be better for the child to be returned to the other parent’s care.

Appointment of a Judicial Factors

An order appointing a Judicial Factor allows the Factor to manage a child’s property and to remit the matter to the Accountant of Court to report upon making suitable arrangements for the future management of the property.

Guardian orders

These orders allow for the appointing or removing a person as a guardian of the child.

Interim orders

Some of the above orders can be sought on an interim basis which would regulate certain initial or temporary arrangements until matters are fully considered by the Court.

Who can seek orders relating to a child?

Any of the orders mentioned above can be made in favour of a person with parental responsibilities or parental rights which would include parents but can also be sought by other parties such as grandparents, siblings or other relatives who claim an interest in that child’s life.

A person who no longer has parental responsibilities or parental rights can also seek an order.

A person with an interest can also seek full parental rights and responsibilities or seek certain parental rights and responsibilities should they be required to assume the care of a child.

General criteria and considerations in respect of granting of an order

The Court will consider the following:

1. The welfare of the child. This is the paramount consideration. Any order is required to be in the child’s best interest.
2. The non-intervention principle. This means that the Court must consider whether it is better for the child to grant an order than not. It may be considered that the arrangements can be regulated by agreement and an order should only be made if better for the child.
3. The child’s views. Taking account of the child’s age and maturity insofar as practicable, the Court must give them an opportunity to indicate whether they wish to express a view. If they do wish to express a view, the Court must give them an opportunity to express the view and have regard to such views as may be expressed.

As will be evident, the focus is on the child and what is better for the child and not the parents, or any person having an interest.

It is considered a mandatory requirement in Scotland that a child’s views are obtained if a child wishes to express a view. This is explored in all cases and consideration is given to the appropriate way to obtain views, which may include the completion of a Form F9 which is a form sent to the child, the child speaking to a Child Welfare Reporter, or the child expressing their views directly to any Sheriff presiding.

Each child’s circumstances are considered to find if they want to express a view and, if they do, the best manner to take that view. The weight to be attached to the views will still depend on their age and maturity, and whether those views are considered to be the child’s own genuinely held views.

Court Process

Raising an Action

Actions can be raised to regulate care arrangements for a child or children independently from any action by their parents seeking to deal with other aspects of their separation.

Proceedings are generally commenced by way of an Initial Writ unless there have been previous proceedings in which either an order was made, or if an order was not made then the appropriate procedure might be by Minute to Vary.

Is there an Intention to Defend?

Once the Initial Writ has been warranted by the Court (i.e. the Court has provided permission for the action to be served on the other party), the action will be served and if this is within the UK, the other party will have 21 days to lodge a Notice of Intention to Defend if they wish to oppose the orders that are sought or seek any orders themselves. If they do not do this, the party who has raised the action can ask the Sheriff to grant the orders that have been sought without hearing from the other party.

Evidence is still required in an undefended action but generally in Affidavit form (a sworn written statement) to establish the order’s sought were in the child’s best interest.

If a Notice of Intention to Defend is lodged, a Court timetable will be issued. Any Court action raised in one of the Sheriff Courts in Scotland will be regulated by the Ordinary Court Rules which have bespoke procedures for family actions. All new actions now follow the updated Court Rules which were introduced in September 2023. The new rules introduced new case management procedures, therefore, alongside a Child Welfare Hearing, there will also now be an initial Case Management Hearing.

Child Welfare Hearing

This is a Hearing to consider the welfare of the child. They are held in private with both parties attending in person along with their solicitor if represented. A hearing of this nature is to help parents resolve matters, or to grant orders if they are unable to agree or resolve matters. The child who is the subject matter of the action will not attend the Child Welfare Hearing. Generally, the Child Welfare Hearing will be between 21 and 49 days after the last date of the lodging of the Notice of Intention to Defend.

There may be circumstances whereby an interim hearing can be sought to regulate any urgent matters which require Court intervention.

Proof

If matters cannot be resolved at a Child Welfare Hearing, it is likely the case will proceed to a full evidential hearing called a Proof. At a Proof parties will give evidence as to why what they are seeking should be granted and they will generally also call other witnesses to support their case. Throughout this, the Court will consider whether they have the up-to-date views of the child or whether they need to be obtained once more before final consideration of the issues in dispute.

Importance of Legal Guidance

We seek to guide and assist parents and parties through such an anxious and stressful time. We recommend obtaining legal advice regarding the above matters as soon as you are able. Our aim is to resolve matters, where possible, without needing to escalate to the Courts, but to be fully prepared to do so if the need arises.