What is a Section 11 Order?

Under Section 11 of the Children (Scotland) Act 1995 the courts are entitled to make any order they think fit in relation to parental rights and responsibilities, guardianship and administration of a child’s property.

There are generally 3 types of Section 11 Orders:- 

1. Residence order
2. Contact order
3. Specific issue order (this can be used for an order concerning matters such as consent to medical procedures, consent to taking a child abroad to live)

How does the court decide such orders?  

When deciding whether to make a Section 11 Order the courts will normally take the following key factors into consideration:-

1. What is in the best interests of the child?
2. Whether making an order is preferable to no order being made at all (idea that courts should not  interfere unnecessarily)
3. The views of the child.

The courts must also now take into account the need to protect the child from the risk of abuse (including domestic abuse) when deciding such orders.

Paternity Issues

There is a presumption of paternity if a man:-

1. Is married to the child’s mother and the child is born during the course of the marriage; or
2. Both he and the mother acknowledge he is the father and he is registered as such on the child’s birth certificate.

Where there is a dispute over paternity an action can be raised for “Declarator of parentage/non-parentage”.  Evidence would then have to be led to support your claim.

Any person having parental rights and responsibilities for a child under 16 or having care and control over that child may give/refuse consent to DNA testing.

Where a child is deemed capable of understanding the consequences of taking a DNA test by the courts they can give/refuse consent to such tests themselves.

Note that if a mother refuses to allow her child to take a DNA test sought by the person she alleges is the father then the courts can choose to draw a negative inference from her refusal.

 Emigration

Under Section 2(3) of the Children (Scotland) Act 1995 a person is not allowed to remove a child from their usual residence in the UK without the consent of any other party with parental rights and responsibilities (PRRs). 

If one parent intends to take a child to live abroad and the other parent objects to this then the objecting parent could seek a Section 11 order (specific issue) to prohibit this. 

Even if the court did allow the emigration the other parent could still seek a contact order from the court which could include residential contact with the child and visits.

Grandparent’s Rights

Under Scots law there is currently no automatic legal right for grandparents to have contact with their grandchildren.

Grandparents can apply to the courts for a Section 11 order (see above) as persons who do not have parental rights and responsibilities but claim an ‘interest’ in the child. They would then have to persuade the courts to grant them the access/residence order sought.

The Scottish Government has created the “Grandparents Charter 2006”. The Charter is not legally binding it does set out guidance on what rights and responsibilities grandparents should have.

Please note that the information above is intended only as a guide and for specific advice on any of the above or related matters we would always recommend that you seek independent legal advice.