Separation: Knowing your parental rights

By Michael Gallagher, Trainee Solicitor, Family Law

A mother’s love is one of the most precious, sacred institutions that most of us will ever experience. It is unconditional, comforting, the type of love we will never really appreciate fully until it is gone. Even now, as a 40 year old trainee solicitor, there are some things that only a cuddle from mum can make better! But there are other things that only a chat with and a cuddle (or a good, firm handshake) from dad can solve!

I am now also dad and find myself being teacher, nurse, clown, taxi driver, chef and all round handyman on a daily basis. And I love it! It is undoubtedly the hardest, but most rewarding, entertaining and fulfilling role I will ever have. So it is perhaps unsurprising that even the thought of this role being removed from my life sends a cold shiver down my spine.

In my former life as a firefighter, I witnessed first-hand the stomach churning, gut wrenching grief of parents who had lost their children in the most traumatic circumstances. I looked on as parents clung onto each other, trying desperately to support one another as life’s worst case scenario unfolded in front of their eyes. Throughout all such experiences, I was never able to differentiate between the grief of a mother and the grief of a father. Both bore that haunted look, both cried that shrill, piercing, desperate cry that is exclusive to victims of extreme trauma.

Likewise, I witnessed colleagues, fellow firefighters, who had shared all of these experiences with me, breaking down and crying as their relationships had collapsed and they were no longer getting to see their children. Some of the strongest, most resilient and battle hardened men I know, crying helplessly as the reality of being separated from their children hit home.

I often wished then that there was something I could do to help these guys, my friends. There was a misconception among my peers that their parental rights and responsibilities were taken away automatically upon the demise of their relationship, be it marriage, cohabitation or otherwise.

What the law says

This is not the case. Parental rights and responsibilities are gender neutral and in most cases that we see nowadays, both parents have equal rights and responsibilities for their children. It goes without saying that the foremost consideration must always be the wellbeing of the children, but, if circumstances allow it, shared parenting arrangements are achievable.

The Family Law (Scotland) Act 2006 grants parental rights and responsibilities to unmarried fathers who are named on a child’s birth certificate. Even if you are unmarried and not named on the birth certificate, parental rights and responsibilities can be acquired, either through a formal written agreement with the mother or via a court order which can be granted under s11 of the Children (Scotland) Act 1995.

However, court proceedings are not inevitable for families who find themselves in this position. There is a common misconception that the court room is the only arena in which a parent can defend their rights, that there are only two options: go to court or lose everything. The truth is that going to court is, or at least should be, an option of last resort. It is where things are forced to play out if all else fails.

How can a court action be avoided?

All other options should be explored before the trauma, expense and acrimony of court action are even considered.

  • Organisations such as Relationships Scotland provide relationship counselling and independent family mediation aimed at finding a resolution before court involvement becomes necessary.
  • CALM Scotland offers mediation services from experienced lawyer-mediators that can help find ways of resolving issues and problems after a separation.
  • There is the option of using family consultants, relationship therapists specifically trained to help couples navigate separation and divorce in a collaborative, proactive manner. They act independently, maintaining a neutral position which avoids the partisan approach which can often derail progress.
  • Shared Parenting Scotland is an organisation which aims to facilitate and promote the involvement of both parents in the lives of children affected by separation and divorce. They provide advice and assistance to parents and children with a view to mitigating the often damaging consequences of family breakdown.
How we can help you

At MacRoberts, we have an Accredited Family Law Mediator and trained Collaborative Lawyers so we are able to offer an alternative approach to those keen to avoid court action. The Collaborative process involves specially trained lawyers conducting negotiations in a manner which promotes a calm, pragmatic atmosphere with a view to maintaining good relationships and, if the separation involves children, working towards a solution that is best for the family as a whole. The process involves both parents sitting down around a table with their lawyers, bringing in additional support from other professionals if necessary.

So, if I could go back and advise my former colleagues, I would tell them that the situation is not black and white. Court is not the be all and end all, it is not necessarily a step they must take. There are many avenues to be explored before it gets to that point.

We are here to help. We understand the impact on fathers, mothers, children and extended families when a balanced, mutually acceptable arrangement cannot be reached.

If you are experiencing difficulty in this, or any area of family law, please contact our specialist Family Law team.

Useful web resources

Relationships Scotland

CALM Scotland

Shared Parenting Scotland 

Individuals & Family

Advising individuals has always been at the heart of our business, and our specialist Family Law and Private Client teams offer expert legal advice to clients who tell us they find us both professional and approachable.

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