McKay Norwell

If family relationships break down, people often assume that only the parents can apply to the courts for orders allowing them contact with the children.  In fact, many other relatives can also apply. as Sheila Byth explains.

The courts have always recognised that parents are not the only family members that children can have valuable relationships with.  Grandparents, aunts and uncles, siblings and other relatives exist too, and orders are often granted by the courts for these other family members to have regular contact with children.

To get the legal terminology straight, "contact" is the right to have contact with a child in order to build or maintain a relationship.  This can be done directly by meeting and spending time with the child, or indirectly by sending or receiving letters, emails or telephone calls.  "Residence" is the right to have a child live with you.  The courts can also make orders dealing with parental rights and responsibilities generally, such as who has the right to make decisions on behalf of the child, or any other matter considered to be part of the role of a parent or carer.

Anyone seeking such orders must show he/she is a suitable person, and the paramount test is always to ask what is in the child's best interests.  The courts will generally favour a strong support and relationship network for children.

A judge hearing an application for contact with a child will always consider the overall situation.  If allowing contact will cause particularly high tension in the household where the child lives, it might not be wise to order it.  However, parents and carers have an obligation to support wider family relationships, and frivolous objections to a contact application will not be successful.  Negative comments by the person seeking contact about the child's parent or carer will likewise be unsuccessful if they are unreasonable.

Anyone deemed to have an interest in the child can apply for orders, but the courts will not grant them to just anyone.  The intention remains for parents to be the main or only people with parental rights and responsibilities unless the particular circumstances of the child require it to be otherwise.  Only one person or one couple can generally have residence unless a shared residence arrangement is agreed or ordered, which can be difficult for the child.

In those unusual cases where there are huge concerns about a parent's ability to properly care for a child it is possible for someone other than a parent to have either full or restricted parental rights and responsibilities.  Sometimes orders are needed just for peace of mind, or to give the child a greater sense of security, or to make the role of someone clear to third parties.

In most cases where this firm is involved, we try hard to reach agreement without taking matters to court.  In those cases that do go to court agreement is usually reached eventually, and the court simply confirms the parties mutual arrangement.  Agreements can therefore be entirely informal, or formally set out in a Minute of Agreement.  However, we do often represent clients in cases where no agreement is possible, and the matter has to be decided by the court.

There are at least two sides to every story and each case is different.  Whoever we represent gets our best advice and representation, and we will push hard for agreement, failing which we will apply for the appropriate court orders.  We always place the child's interests at the heart of our advice.

If you wish to discuss any family matters with us, do not hesitate to contact John Mitchell, Sheila Byth, Douglas Peters, or Ann Scott at this office for a free enquiry, on 0131 222 8000.