When it comes to deciding where children will live when a marriage or partnership breaks down, courts in Scotland will place the welfare of the children at the heart of the decision making process. Stability is important for children at a time of emotional upheaval and uncertainty. One of the ways that continuity can be maintained is through school attendance. Even if home life is less than settled, maintaining school attendance can give children the stability they might not get at home during a matrimonial dispute. It is central to any decision made by the court that they will only make an order in relation to children when it is in their best interests to do so; if it is not, no order shall be made. The law that regulates this decision making process is found in the Children (Scotland) Act 1995, specifically Section 11.
A recent family law case that was heard in the Court of Session in Edinburgh serves to highlight this. A divorcing couple had two children, and each parent sought a residence order for the children to live with them respectively. The children attended a primary school in East Kilbride. By all accounts the children were settled at the school. They had moved out of the matrimonial home with their mother initially to her own flat in East Kilbride, and relations between the two parents had been amicable. This changed when the mother entered into a relationship. It appeared that the relationship between the parents became strained and quite problematic, with a breakdown in trust on both sides. The mother then withheld contact between the father and the children. The father raised an action to have contact reinstated, which was successful.
Latterly, the mother’s relationship with her boyfriend ended, and she began another relationship, and moved to a rented cottage in Dollar, in Clackmannanshire. This was some distance from the children’s school. It was agreed that the mother would drive the children to school daily. Her new boyfriend had three children of his own and the family appeared to all get on well. The mother sought an order specifically to allow the children to attend school in Dollar, in the new academic year.
A psychology report lodged with the court highlighted the importance of maintaining the status quo in terms of the children’s schooling, and that regular contact with the father was important. The fact that the mother had been in two relationships in rapid succession was also another factor that could be unsettling for the children, and it was unproven how permanent the latest relationship would be. Maintaining their place in school would give them continuity. Ideally, the mother would return to live in East Kilbride, something she had said she would be willing to do if it meant maintaining residence of the children. The fact that the parents clearly made no attempt to disguise their contempt for one another in front of the children was also harmful, both in the short term and in the future. The court had regard to the children’s views expressed through the psychologists report.
Although this may have been the ideal, the court realised this was not practical in the short term, and looking at all the circumstances, that is was not in the children’s interest to make an order regarding which parent they would normally reside with, and the case was adjourned until November, after which time the mother’s lease of the cottage would have expired and she would have the opportunity to make necessary arrangements to move back to East Kilbride. If this was the case, the court stated they may be minded to make a residence order in her favour. However, the court did decide it was in the children’s interest to make an order at present specifying that they remain in the primary school in East Kilbride and that their primary residence should remain with the mother. While the outcome in the interim may not be ideal as it will involve a long school run daily, the court has allowed the parents to make both housing and employment arrangements that will be beneficial to all before coming before the court again.
It is clear from this case that the courts will see a stable, continuous education as a vital factor in providing stability and support to children at a time of uncertainty and change in their home life. Inksters are experienced in all aspects of family law, from matrimonial disputes to child residence orders. Our
Gus Macaulay is an experienced practitioner and will be able to assist you. Call Gus on 0141 229 0880 or
send Gus an email.