When parents with children decide to separate, the most important decisions surround what the arrangements for greater rights for children in the future.

Many parents are aware that their actions, prior to separation when relationships have been difficult, and during and after the separation process can seriously affect the children’s welfare.

In the main, parents make their own decisions about what is to happen to their children. Where will the children stay? Will there be joint residence? Will the parent who has left have contact with the children and for how long? What happens at holidays, who decides about education and religious upbringing. The list is endless.

In the same way that people do not have formal training on how to be a good parent generally, separating parents do not receive instruction on how to treat their children during the stress at the end of a relationship.

Do such parents speak to their children (depending on age and cognisance) and ask for their views as to what would be best for them? In most cases probably not. The parents muddle through a difficult situation hoping that their intuition as to what is best for their children will come to the fore. They reach agreements as to what will work for their children themselves with no outside aid.

Whether the decisions made by parents in these circumstances do work out well for their children is not known. It is not recorded. If the parents decide to divorce or formally separate they consult family lawyers and tell them that everything has been sorted out as far as the children are concerned. The lawyers need not get involved. A small amount of basic information relating to the children’s welfare and what arrangements have been made is provided to the court by the person who raised the divorce. There are no checks to ascertain if the arrangements are successful.

Although that all may sound unsatisfactory it is no different to the position where parents are not splitting up where, unless something extreme happens and perhaps social services become involved, there are no checks to make sure children’s welfare is protected.

There is a presumption that parents know what is best for their children.

But sometimes separating parents cannot agree on what is best for their children. They fall out and consult family lawyers.

In Scotland the legal process in such cases is, in the main, adversarial. This is rarely helpful. Parties take up positions which are supported by their lawyers. Damaging emails and letters fly to and fro. Relationships between the parties deteriorate in a flurry of damaging accusations as to the other parties parenting abilities.

Comments are made, in the heat and stress of the moment, that cannot be taken back and lets not forget that the parents remain parents throughout this battle. They still have their duty to look after the wellbeing of their children especially during the tensions of separation.

It is, of course, the case that there are non – adversarial processes to help parents in this type of situation.

Mediation is the best known. The problem is that each parent has to agree to Mediation. It is a mutual process. The whole ethos behind the process is that the Mediator will help the parties reach an agreement about what is best for their children. But at this stressful time many parents do not want to reach a mutual agreement about anything.

Unfortunately the importance of working together to determine what will work best for their children disappears under the weight of mutual antipathy.

Over time that might change but for the warring parties there is no time other than the present.

So a third party, a Judge/Sheriff, has to decide what is best for the children. The dispute ends up in court and that is a whole new ball game.

It is no longer for either parent to make decisions about the children’s future, it is for the Sheriff.

The Sheriff who has never met the children and, at the outset at least, knows nothing about them. The Sheriff who has had extensive legal training but little or no instruction in the more subtle skills surrounding interpersonal relationships.

The law that the Sheriff is obliged to follow (at present the Children (Scotland) Act 1995) does make it clear that the interest of the child is paramount. The subsequent case law has reinforced and clarified this.

The negative picture painted above is alleviated by the fact that the Sheriff can seek the assistance of a whole range of experts who can provide background, context and opinion to help the Sheriff come to a decision.

The law is about to change to become more child focussed. The new Children (Scotland) Act 2020 (not yet in force) strengthens the existing principle that, if it is possible, if a decision is to be made about the future of a child, the views of that child must be taken.

Previously the law was that the view of a child would not usually be taken if the child was under 12. This parameter has been swept away. The court must now have regard for any views expressed by the child ‘taking into consideration the child’s age and maturity.’ Now there is no stipulated age below which it would not be appropriate to take the child’s view.

The presumption is that the child is capable of forming a view although that can be rebutted.

The new law reinforces the principle of the child’s welfare being paramount and reaffirms clearly that a court order should only be made if such an order would be better for the child than no order.

This principle supports the idea that asking for a court to make an order is a last resort

The new Act also liberalises the ways that a child can express a view. The old standard form has gone and Sheriffs and lawyers can use their imaginations when gleaning from the child how best the child would like to express itself. (‘lawyers’ and ‘imagination – good luck with that!)

There are various other provisions relating to the regulation of contact centers and the training of Reporters (an overdue enactment involving the training of those who provide welfare reports for the Courts)

An important addition is that the Court must ‘ensure that any decision is explained to the child in a way the child can understand.’

This is welcome as, to date, there is no way of really knowing if parents, particularly those not happy with a decision, do explain why an order of the court has been made and what it will mean in practise.

The change in the law puts far more emphasis on the children in any case being more involved in the decision making process. This is progressive and laudable although putting the provisions into practise may not be easy.

The younger the child the more challenging the task of obtaining relevant views and explaining the meaning of outcomes.

If Sheriffs or lawyers are to be involved training will be required. If non lawyer specialists from a social work/ psychology background are to be involved more government funding will be required.

Funding for anything legal aid or court related is hard to get. Without proper training the new law will struggle to make a difference.