Scottish Court self representation help

[dadsrights]

HI im looking for some help regarding my partner, we live in Scotland his ex hasnt let him see his 2 young kids for a year now because he introduced them to myself before she was happy with it.
she is now ignoring all lawyer letters and due to costs we have decided for him to represent himself so we are looking for help in how to navigate the Scottish court system and fill in forms, also we dont have their birth certificates and he is not on the birth certificates (she went her self to do this to keep him from having rights)

Any help would be greatly appreciated.

 

[Ash]

Hi. Scottish law is a different system to England and Wales - some similarities. I'll try and dig out some info for you. If you need their birth certificates you should be able to send for a certified copy (I did this). Were they married? If so he should have PR whether on the birth certificate or not (I am not certain about all this with it being Scotland) but if any doubt, as part of his application he would also need to apply for PR and they may need to order a DNA test to prove parentage, to give PR. Presumably though, before they separated he lived with them as their Dad!

More info would help. ie were they married? How long after they lived together were the children born? Were the children born before or after they married (if they married). I am assuming they weren't married, hence his name not being on the birth certificates. Did they at least live together as a family and him believe he is the Father?

I would act quickly as these things are taking a long time to resolve since the pandemic (and do generally anyway). I think the court would need to order a dna test if needed - it needs to be the blood tests I think - saliva ones don't count in court.

 

[dadsrights]

Thank you very much for your reply no they were not married together for 5/6 years on and off there is no question of paternity of the time being together and she happily takes the child maintenance money every month. She fell pregnant within two months of being together then again soon after the first. they lived together all this time (when she wasn't throwing him out every other week at least) she always threatened him if he ever left her he would never see his children again, family members have heard her say this, hence why he stayed. he has proof of this also from her and her friends in messages saying the same thing.

she allows his parents to see the children and other family members on the condition he is not allowed in their home at the time, she even has them calling him by his first name also "to teach him a lesson" for leaving.

any help would be so gratefully received.

Thank you

 

[Ash]

If she is getting them to call him by his first name then that is parental alienation. Vengeful exes are quite common. You should mention this in the court application (don't mention the term parental alienation, just mention the children are required to now call him by his Christian name and they will see what's what!). You say young kids. How old are they?

Did he meet you after he left or before? Makes no difference really - I met my partner a long time after my ex and I weren't an item (we were only an item for a matter of weeks!) but she still thought I was "hers"! The difference was, my ex was very keen to have me on the birth certificate (we weren't living together) so she could get Child Maintenance. Maybe that's different in Scotland. But your partner is probably more interested in seeing his kids anyway, then not paying CM because he isn't on the birth certificate. These difficult exes seem to want it both ways though! "You're not the Dad but you're Dad enough to have to pay me Child Support" type thing.

That sounds very unhealthy if she is letting the kids see his parents but not him - bound to cause all kinds of upset in the family. It's clever too - a kind of triangulation. Because the grandparents will of course love it and feel "favoured" and not want to upset her or rock the boat - but she is making them disrespect their own son!

According to the link below, your partner doesn't have parental responsibility - because he wasn't married to the Mother and he isn't registered on the birth certificate. Same rules as in the rest of the Uk.

That means he needs to apply to the court for parental responsbility, explain the history, and most likely need to prove his paternity via a DNA test which the court can order to be done.

It should be the same as in the rest of the Uk in that you can apply for PR and a Child Arrangements order at the same time/on the same application. But you can't have a Child Arrangements order without the PR so the two have to be done concurrently.

I am wondering though if he will have to prove paternity because if he is paying child support then the Mother must have told the Child Maintenance service that he is the Father! Which should be evidence enough in itself. Although I think it could be advisable to have a DNA test anyway. There are plenty of stories. One Dad didn't find out he wasn't the actual Father until his son was about 8, after years of living with him and a few years of co parenting. The Mother stopped contact and told him the child's Father was someone else so he had no legal rights.

He applied to court and because he had been a Father to the child all the child's life, they accepted he was actually a Father and gave him a court order (I can't remember but I think in that case they gave him sole residency because of the things the Mother had done).

So your partner will get a court order. The difficulty is the Mother sounds quite hateful towards him and toxic. What are her reasons for not letting him see the children? The usual is - they don't like him have a new partner or the children having a stepmum.

Fathers

Find out about what the law says about your responsibilities and rights whether you're a mother, father, married, living together or in a civil partnership.

www.mygov.scot

The only detailed info I know of for applying via the family courts in Scotland is this other link below - information produced by Families need Fathers Scotland. But it's from 2014. I don't think much has changed. It's called PRR instead of PR there (Parental Rights and Responsibilities).

According to this

It is common for a non-resident unmarried father who doesn't automatically have PRRs to apply for
them and for contact in the same action. You can still take court action to have contact with your
children without PRRs, but a father without PRRs is limited to some actions such as agreeing to
medical treatment or giving permission for school outings.

Which is basically saying he could still have an order even without PRR but it would be usual to get it at the same time as an order as elsewhere in the Uk. I guess what that means though, is if the Mother went to some lengths to deny he was the biological Father and caused delays and issues in getting a DNA test done, he could still have an order meanwhile, while all that is sorted out.

It talks about "Contact" and "Residence" which were the old terms in England and Wales that changed in 2014 to "Spends time with" and "Lives with" - it may still be called Contact and Residence in Scotland, I'm not sure but you could probably find out by asking a solicitor (you should be able to get a free half hour).

It's a brilliant resource and wealth of information and suggest you read all of it! Tells you just about everything there is to know about the process in Scotland, and all the terminology (which is different to England and Wales terminology).

One thing that is different as well is legal aid. There is still legal aid available in Scotland. I know of a Dad who got it for his case, so that's the first thing to enquire about - how to get it and are you eligible - I am not sure how it works but I do know it's available for Dads. The downside, as I remember, is it took a very long time to sort out and get started with the process. You could maybe do a mixture of things - partly act for himself and partly use a laywer once legal aid is through. I think again you'd need to speak to a solicitor about that but if it's for legal aid, surely they can't charge you! And they will want the work presumably.

I think one thing to find out is - can you still apply for legal aid, if you've already started the process on your own. Because that might make a difference as to whether he starts the process or waits. Although waiting is never a good option when you can't see your kids at all. I would hope it could be concurrent. Eg start an application, then start acting for himself until the legal aid comes through.

http://static1.1.sqspcdn.com/static/f/861186/24542841/1395073043610/Representng+Yourself+in+a+Scottish+Family+Court.pdf?token=eIVa5ttv19PoafgI4gihqntvzf4%3D

There's some more info here about Shared Parenting Scotland (not about applying to court, more of a pressure group) and they are campaigning to change the terminology away from Contact and Residence (so clearly those two terms are still used in Scotland).

Family Law Reform - Shared Parenting Scotland

Changes in Scottish Family Law Changing the law concerning children and families is a big undertaking. Passing the Children (Scotland) Act in 1995 marked a major shift in approach. Although parts of that Act were revised in 2006 , the Children (Scotland) Bill is the first time the Scottish...

www.sharedparenting.scot

Either of these organisations might be able to help though. And as far as I can see there is no compulsory requirement to have mediation before applying to court (which won't work anyway probably).

 

[dadsrights]

you have hit the nail on the head, she try's to use the children to keep relationships with members of his family, aunts gran etc and visit their homes (including his parents) which i agree is totally disrespecting their son but his mum doesn't care, its very much the case as long as i see them i don't care that you don't or how you feel. And she thrives on this, she was very controlling in their relationship cut of his friendships even made him fall out with his mum and stopped her seeing the kids for months and didn't allow him to be friends with female cousins and hated the relationship he has with his sister, they are very close.

He received an email today from her lawyer stating she did not wish for him to have contact as he has been inconsistent with seeing them, even though she regularly changed visits at the 11th hour, including when i was to be introduced. They have said to go ahead with court and she will accept the papers.

the children are 4 & 7, we were in a relationship 7 months after they split.

I have read on the child maintenance site that paternity is presumed unless proved otherwise.

you have been a wealth of knowledge and i will speak with his lawyer on monday regarding legal aid as he is away with work at the moment.

Thank you so much

 

[Ash]

Good luck on Monday. Was he inconsistent with seeing them? Or are they just making excuses? Did she regularly change visits at the 11th hour? Or was it simply asking to rearrange a day? If I only heard her side of it I would think - Dad kept wanting to change child arrangements due to dates with new girlfriend and Mum thinks he is putting girlfriend before kids. And some Mums genuinely do think that (along with a dose of pique and jealousy). My ex was the same when I was dating and stopped contact because I said I couldn't give her a lift somewhere (because I had a date with my new gf). This wasn't even a proper visit with my son, she just wanted a lift! I got this horrendous text saying she'd take me to the CSA for every penny, and I was putting my gf before my son blah blah. My gf said - just change the date and give her a lift I'm not bothered. I have to say I felt well and truly in the middle of two women. Although gf was quite laid back and helpful about changing dates. Of course it wasn't about putting gf before child (in her mind it was partly) it was about putting gf before Child's Mother!

Anyway from an objective and court point of view she can argue he was inconsistent and he can blow that argument out of the water by asking for a clearly defined order saying he would like consistency . As for the email saying she did not want him to have contact. Ignore and just get the court process rolling. She is not God. The kids have a right to a relationship with both parents.

The family stuff sounds toxic on her part and whatever his Mum is like I wouldn't blame her too much - she is being manipulated by the ex. The ex is probably doing this to hurt him as well. I've heard of stories like this before.

I hope your partner gets a good order. Because that way, if grandma wants to see the kids she'll either have to arrange it with your partner, or the ex will have to do it on her time! It's a parent who should decide who the kids see, how and when and the kids have two parents. Probably grandma will see the kids whether it's with him or with ex, but she will need to toe the line a bit more. Had something similar with a relative who kept behaving a bit like my son's Dad! And buying him expensive things without running it by me. Had to stop that.

 

[dadsrights]

Thank you so much, he was consistent until she would push back constantly when they were to be introduced to me. the last time he seen them she agreed three weekends in a row of him seeing the kids and the sunday of the last weekend i would be introduced. on the Friday of that weekend this was still agreed then on the Saturday when he mentioned about me meeting them the next day she said no they werent coming on the sunday now and pushed it back another two months, no reason given.

He never went on the Sunday and she has used this against him even though she said not to go she has told everyone he just never turned up when this wasnt the case. she likes playing the victim.

Also she has shared lawyers letters on social media of his is there anything that can be done about this?

 

[Ash]

So she is lying about him being inconsistent. From now on you/he needs to start building a file of evidence - leaving it till final hearing is too big a job and can take a long time and things get forgotten/missed, so a good idea to do it from now on.

Does he have any texts/emails about these arrangements you mention above, that were then changed? Making these arrangements? Or was it all verbal? If he has nothing in writing then in future any arrangements or changes should be in writing (a brief text). Don't worry about it though. I am sure it will be clear that she stopped him seeing the kids when he had a new partner. And that is very common.

Sharing lawyers letters on social media is concerning.

1) Screenshot them to prove she has done this (with her name or "handle" in the screenshot obviously
2) Then contact the site and ask for them to be taken down.

 

[Ash]

A well worded first application can be a good start. I don't know what kind of application form it is in Scotland, but if you want some help writing something that can't be "tripped up" later I'm happy to have a look.

I hope you can find out if you can put your own application in first and still get legal aid, because in these situations you need to move quickly. Delay is the enemy to the children and the relationships. Every situation is different. The Dad I mentioned who had legal aid I seem to remember had to wait about 6 months. Difference was his kids were older and he and his wife had had a solid relationship for many years and still had some contact.

If your partner's situation is a sudden cut off then too much time can end up doing damage.

I'm also just wondering if there is any negotiation still possible at this stage. Being "inconsistent" isn't a reason to remove a child from a Father. But I suspect not as the whole reason for witholding the kids is jealousy, nose out of joint, control and possibly, if I'm generous, some fear.

 

[dadsrights]

There is no more contact between them both, although previously everything was either via email or txt message so he has copies of it all as well as screen shots people have sent him of her rants on facebook about him as we are both blocked.

The last contact from her was in an email saying she had had enough of giving him chances and not to contact her again go to court were her words.

After this and also before he has received abusive and threatening messages from her friend(she silly but not that silly to get a friend to write the bad stuff) we also have copies of these, also previous to him meeting me that has split up before and the friend threatened him to leave the other person he was seeing or would never see his kids again. A family member also heard her tell their oldest child when they were about 3 and had fallen out "wave bye bye to daddy because your never going to see him again"

As well as being at a family even the kids covered their eyes whenever they seen there dad, as "mummy said we have to teach him a lesson" this was a year after splitting up.

She has stated in the last lawyer letter she is not prepared to let him see the children as he didnt contact them at Christmas of their birthday, she has blocked him so he cant contact and if he went to the door she would have called the police and upset the kids.

i would be forever grateful if you were able to write something up, thank you so much for all your advice and understanding,

 

[Ash]

I would act quick then. A year is a long time for him not to see them. I think a court may wonder why he didn't do something sooner. She is bound to come out with all these things but he can just calmly say that isn't the case. She has no evidence that what she says is true and there's the argument that she wouldn't let him see them so how could he see them at special times. And the argument that all this started over him having a new partner. How old are the kids now? It's not too late.

 

[dadsrights]

I would act quick then. A year is a long time for him not to see them. I think a court may wonder why he didn't do something sooner. She is bound to come out with all these things but he can just calmly say that isn't the case. She has no evidence that what she says is true and there's the argument that she wouldn't let him see them so how could he see them at special times. And the argument that all this started over him having a new partner. How old are the kids now? It's not too late.

They are young only 4 and 7

 

[dadsrights]

I would act quick then. A year is a long time for him not to see them. I think a court may wonder why he didn't do something sooner. She is bound to come out with all these things but he can just calmly say that isn't the case. She has no evidence that what she says is true and there's the argument that she wouldn't let him see them so how could he see them at special times. And the argument that all this started over him having a new partner. How old are the kids now? It's not too late.

five months of this time though she ignored lawyers letters.

 

[Ash]

That's the reason you give then. You were communicating via lawyers trying to resolve the issue but the letters were ignored for some time.