A quick guide to children law in England & Wales and Scotland — part 2 — Court process for children hearings

Different laws and processes apply in each jurisdiction, and below we highlight some of the main differences in relation to children disputes, primarily focussing on options for parents and processes.

It follows on from our earlier article on parental responsibility.

We have previously highlighted some of the main differences in divorce/dissolution law: 

1. Civil partnership dissolution
2. Financial settlements arising on divorce
3. Cohabitation

What is the court process for children hearings?

For more information about who can make an application to the court in England & Wales for an order relating to a child, and what that process is, please see our podcasts series.

Before parties even consider proceedings, they have to consider if mediation is appropriate. This is only a requirement in England & Wales, not Scotland.

In Scotland any person with an interest in the child’s welfare can apply to the court for parental rights and responsibilities, a residence or contact order.

The process in Scotland is different too.

Sheriff court

Most cases are dealt with by the Sheriff court, where the parties will apply for such orders deemed necessary in the best interest of the child.

The court will order service on the other parent/party so that they know about the court hearing and they will have 21 days to respond.

If the matter is urgent, the court can fix an earlier hearing. Otherwise, when the other parent/party has notified the court that they intend to defend the action, the court will fix a child welfare hearing.

Child welfare hearings 

Both parties attend the hearing (which is heard in private) with their legal representatives. The court will try to help parents resolve matters if they can.

The court may order expert reports to be prepared into the background of the case to assist the court, and/or make interim arrangements. There may be several hearings to monitor those arrangements.

There is no equivalent CAFCASS service in Scotland to assist in monitoring and facilitating the arrangements for the child. If there are further difficulties or the parties cannot agree or dispute any interim arrangements put in place by the court, the court may fix an evidential hearing before making a final decision.

Court of Session

The procedure for more complex actions raised in the Court of Session (such as jurisdictional disputes) is slightly different as there are no child welfare hearings.

Although the procedural rules are different, the same over-arching principles concerning the welfare of the child remain the same whichever court is used.

What types of orders can the court make?

In England &Wales, our podcasts explain more about Child Arrangements Orders and other types of orders that might be made by the court. All of these orders will usually last until the child is aged 16.

The court has the power to make interim orders where they see fit, before the matter is finally determined.

The Scottish court can make similar orders as it thinks fit.

How does the court make decisions?

Although the legislation in both jurisdictions differs, the principles applied by the courts in both England & Wales and Scotland are similar based on:-

1. The welfare / best interests principle
2. The no order/minimum intervention principle

The courts use case law to apply to interpretation of the above depending on each child’s particular circumstances.

Whilst both courts consider that the child’s views should be ascertainable where they are able to, there is a presumption in statute in Scottish law that a child, even an infant from around 5 years and upwards, shall be presumed to be able to form a view unless the court is shown otherwise. There is no such age stipulated in English law, where the court takes a view each time depending on the individual child.

Summary

We can provide specialised advice in both England & Wales and Scotland, and assist in any cross-border family cases which span both jurisdictions.