Children

When relationships break down, issues often arise over which parent a child should live with and how often the other parent should see the child. Where the parents cannot agree they would need to seek a residence order and/or a contact order form the court. A residence order determines with whom the children should live and the contact order determines the contact of the child with the other parent. The parents could even obtain shared residence orders. Where a residence order is made it confers upon the person to whom it is granted parental responsibility. If the residence order is however granted to an unmarried father, who would not automatically have parental responsibility over his children, the court would make a separate parental responsibility order. The effect of this is that even where the residence order is revoked the father will retain his parental responsibility.

Persons with parental responsibility for, or parental responsibilities in relation to, a child, are legally recognised as having all the rights and duties that parents normally have in relation to a child and generally they have to be consulted about major decisions in relation to the child's upbringing e.g. in relation to education, medical treatment, any change of the child's name and removal of the child out of the jurisdiction.

For details of who has, and who can acquire, parental responsibility, or parental responsibilities, see the Parental responsibility section.

Parental responsibility (or parental responsibilities) continues notwithstanding a relationship breakdown.

If a child's parents cannot agree which of them the child should live with, either parent can apply for a Residence Order. The Court has to make a decision on the basis of what is in the best interests of the child. Shared residence orders are becoming more common as case law develops.

If a child's parents cannot agree on how often the parent with whom the child is not living (the non-resident parent) should see the child, that parent can apply to the court for a Contact Order. The Court can make a general order saying that one parent should have 'reasonable contact' with the details left to be agreed by the parents or it can be much more specific, setting out the precise times and dates that contact must take place, including whether and how often the child should stay overnight with the non-resident parent and how much holiday time the child should spend with them. It should be noted that in Scotland the law expects that a court should be asked to make an order as a last resort and only where it is better that an order be made rather than no order at all.