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Child Contact

Child Contact

One of the most common reasons that people contact our helpline is to talk about issues they are facing relating to child contact and domestic abuse.

You may be worried about what will happen if you decide to leave with your children and want to understand more about your rights. If you’re already separated, there may be issues with child contact being used to continue to control, monitor, and harass you; you may have difficulty making contact arrangements due to abusive communication, changing goalposts, or unreasonable demands; or there may be concerns about the safety and wellbeing of your children.

This is a complex topic and we hope that you will find some of this information helpful, however that this is just a general guide and does not replace legal advice. For legal advice, specific to your individual situation, we recommend speaking to a solicitor or a legal advice service. See ‘Who else can help’ below.

Please note: we use ‘parent’ to mean ‘someone with “parental rights and responsibilities”’. Parental rights and responsibilities is a legal term, and means someone who – amongst other things – has a right to have the child living with them, or to have regular contact with them.

Child contact is the term used to describe the contact between a child and a parent who they do not normally live with. This includes the communication they have and the time they spend together.

When parents separate, arrangements must be made for where the child will live (residence) and when they will see the other parent (contact).

In situations where there is concern about the children’s welfare with the other parent, child contact may be supervised, or in some cases it may be stopped.

There are two main types of child contact arrangements: informal and court-ordered.

Informal child contact is not court-ordered or legally binding, these are arrangements that you make between yourselves about how you will manage child contact.

This may be suitable if you and your ex-partner can agree about what contact should look like and you feel like this can go ahead safely.

When there is domestic abuse, child contact can be very difficult to manage alone and many people choose to have a third party, like a friend or relative, help facilitate contact. For example, they might arrange the times, do the handover, or supervise the contact.

If a child contact action is raised, by you or the other parent, then this will go to court and a Sheriff may decide what you both must do. This includes decisions such as who has main care of the children, who they live with, who they have contact with, and how and when that contact takes place. Those decisions are legally binding.

The decisions made by the court should be in the best interests of the child and should take the effects of domestic abuse into account. Depending on the children’s ages, the court process should also take their views into account when making decisions about child contact.

If you have received a letter summoning you to court, or from a solicitor acting on behalf of the other parent, you should seek legal advice from a solicitor who practices family law.

When going through formal child contact proceedings, it is important that you inform your solicitor about the domestic abuse and tell them if you have any concerns about the welfare of your child with the other parent.

There is more detailed information in this booklet, ‘Court Ordered Child Contact in Scotland’, from Glasgow Women’s Aid. This was co-produced with survivors of domestic abuse and helps explain the Court ordered Child Contact process and the family court system for those experiencing domestic abuse.

Parental rights and responsibilities are the legal rights and responsibilities that a parent has in relation to a child. This normally includes the right to have the child live with them or to have contact on a regular basis if the child is not living with them, so long as this is not deemed to be unsafe.

Mothers have parental rights and responsibilities automatically. Fathers have parental rights and responsibilities automatically if they are either married to the child’s mother or they are named on the birth certificate of a child born after 4th May 2006.

Parental rights and responsibilities can also be granted to someone who doesn’t automatically have them through the courts. The court can also decide for them to be removed, although this is rare.

Where parents are having difficulty agreeing child contact arrangements, mediation may sometimes be suggested. However, in situations where there has been domestic abuse, mediation may not be appropriate and domestic abuse professionals recommend against it.

The aim of mediation is to facilitate balanced discussions to negotiate things like child contact. This is typically not possible where there has been domestic abuse because the abusive parent may use the process to continue to try and control and intimidate you. You may also find it difficult to communicate your position in this setting because of the impact of previous abuse.

Court-ordered child contact arrangements are legally binding and it is important that you keep to these. There can be legal implications if you do not.

If either of you break the court order you can be held in contempt of court. For example, this could be because you don’t make your children available for contact when you are supposed to or because they do not return the children at the agreed time. Being held in contempt of court can result in a fine or a prison sentence.

If the non-resident parent does not turn up for contact, in that situation they will not be held in contempt of court as this is instead seen as them not taking up their parental rights and responsibilities.

If your ex-partner has parental rights and responsibilities, this includes the right to have the children live with them. If your arrangements up until now have only been agreed informally between you, there is nothing legally in place that prevents them from keeping the children with them. In this situation you should:

  1. Seek legal advice - A solicitor will be able to tell you more about legal options, such as applying for child residence – where the child normally lives, and about formalising contact arrangements.
  2. Phone the police - If you believe that your children are unsafe, phone the police on 999.
    If there are no safety concerns, the police will not be able to intervene where there is no legal child residence or child contact order in place.

If you have a residence order, but your ex-partner will not let you have your children back, there are several things you can do:

  1. Contact your solicitor
  • If you have a residence order saying that the children live with you, your ex-partner must return them after their contact visit.
  • Tell your solicitor if your ex-partner breaks this order. Your solicitor should contact your ex-partner’s solicitor, and demand that the children are given back.
  • If your ex-partner still refuses to return the children, the case may need to go to court. Your solicitor will be able to give more information about this, including how long they expect the process to take.

2. Phone the police

  • If you believe that your children are unsafe, phone the police on 999.
  • If you don’t think the children are in danger, but your ex-partner is breaking the residence order, you can still phone the police on their non-emergency number, 101.

If contact arrangements are informal, you are under no legal obligation to ensure the other parent sees the children. If you are concerned that contact would put your children at risk, you can cease contact altogether and the onus would be on the other parent to go to court to challenge this if they choose to. It is important that you seek legal advice before making the decision to stop contact, unless it is a matter of urgency for their safety.

If the contact is court-ordered, the court should be informed of any change in circumstances, including where children are expressing that they do not want to see the other parent. If you have a solicitor, you should let them know about this. Keep a record of any incidents or reasons for concern and if the child is seeing any professionals, such as GPs, health visitors or school counsellors, any concerns that are noted down may serve as supporting evidence later if the case is reviewed.

If you are working with your local Women’s Aid, your children may be able to access support from their children and young people’s worker.

For immediate concerns about a child’s safety, the police should be contacted on 999. Additionally, you could contact social work and report your concerns.

Many people fleeing domestic abuse move to another area with their children. So long as there is not a court order stating that the children need to remain in the local area, you are legally able to move out of the local area to another part of Scotland or the UK.

If you do this, your ex-partner is entitled to raise a court action to challenge this. Additionally, if your ex-partner is aware in advance that you may be leaving the local area with the children, they are entitled to raise a court order that restricts the children leaving the local area without their consent.

You are not legally allowed to travel abroad (outside of the UK) with the children without the written consent of the other parent. This includes both moving abroad and going on holiday. If your ex-partner refuses consent, you can seek legal advice.

Glasgow Women’s Aid have a booklet called ‘Court Ordered Child Contact in Scotland’. This was co-produced with survivors of domestic abuse and helps explain the court ordered Child Contact process and the family court system for those experiencing domestic abuse.

http://www.glasgowwomensaid.org.uk/court-ordered-contact.html

The Scottish Women’s Rights Centre have a helpful guide about the law in relation to child contact and residence.

https://www.scottishwomensrightscentre.org.uk/resources-guides/Child-contact-and-residence-final2.pdf

For more information about finding a solicitor, see our page on legal action.

Who else can help?

The Scottish Women’s Rights Centre may be able to help with free legal information and support for women experiencing domestic abuse or other forms of gender-based violence, including those with no recourse to public funds. They provide a helpline service as well as local legal surgeries and have useful information guides available on their website.

https://www.scottishwomensrightscentre.org.uk/

The Scottish Child Law Centre provides free confidential legal advice via telephone and email, on all aspects of Scots law relating to children and young people. All calls and emails are answered by fully qualified solicitors.

https://sclc.org.uk/

The Scottish Legal Aid Board is responsible for managing legal aid in Scotland. Legal aid allows people who would otherwise not be able to afford it, to get help for their legal problems. They have eligibility estimators and FAQs on their website.

http://www.slab.org.uk/

The Family Law Association website includes a search tool for finding Family Law solicitors by area.

http://www.familylawassociation.org/

The Law Society cannot provide legal advice but can help by assisting you in finding a solicitor and providing information on other legal-related matters. The website has a search tool and useful information such as FAQs about dealing with solicitors, legal fees, etc.

http://www.lawscot.org.uk/