In situations where both parents have rights and responsibilities to children under the age of sixteen years, the parents are equal in the eyes of the law, and neither has rights which trump that of the other parent. When a couple separate, there is often uncertainty about what decisions can be made independently and what decisions need them to inform and consult with the other parent.
If communication between the parents is poor then difficult situations can quickly escalate, potentially resulting in expensive and time-consuming actions being raised in court. Not to mention unhappy parents and upset children. We would always recommend that parents endeavour to be as transparent with one another as possible regarding their children and to strive for open and honest communication to safeguard and promote the welfare of the children.
Naturally there are many day-to-day decisions where it would be both unnecessary and unrealistic to wait for the other parent’s permission. However, there are decisions that definitely should not be made without the other parent’s prior knowledge and consent.
Guidance on distinguishing between decisions
An English case (A v A [2004]) concerning an intractable contact dispute provides a helpful guide for conflicting parents. It was held that the children should spend equal time with both parents under a shared residence order, irrespective of the conflict that remained between the parents.
Here we explain the guidance that this case offers parents to distinguish when they can make decisions independently, when they should at least inform the other parent and when they should both inform and consult the other parent before making decisions regarding any children, to allow them to successfully co-parent apart.
The list has been amended slightly to reflect the Scottish approach which is in keeping with the terms of the Children (Scotland) Act 1995.
Independent decisions – no consultation or notification needed
Decisions that could be taken independently and without any consultation or notification to the other parent include:
- How the children are to spend their time during contact
- Personal care for the children
- Activities undertaken
- Religious and spiritual pursuits
- Continuance of medicine treatment prescribed by GP
Decisions requiring notification only
Some situations will require one parent to inform the other parent but they won’t need to consult or take the other parent's views into account, such as:
- Medical Treatment in an emergency
- Planned visits to the GP and the reasons for this
Decisions requiring notifications and consultation
We would never recommend that a parent make any of these decisions without obtaining either verbal or written permission from the other parent beforehand.
- Booking holidays or to take the children abroad
- Schools the children are to attend. This is to be decided taking into account the children’s own views and in consultation and with advice from their teachers where appropriate
- Contact rotas in school holidays
- Planned medical and dental treatment
- Stopping medication prescribed for the children
- Attendance at school functions so they can be planned to avoid meetings wherever possible
- Age that children should be able to watch videos. i.e. videos recommended for children over 12 and 18
If consent is unreasonably withheld for such decisions, the option would be to apply to the local Sheriff Court for a Specific Issue Order where the Sheriff will consider whether the order sought is in the child’s best interests.
We always encourage clients to endeavour to reach agreement with the other parent informally and consult one another before making any big decisions that can have a significant impact on the children. This avoids causing any distress or damage to the children, who may be stuck between two long-standing hostile parents.
Parents should try to cooperate with one another for the sake of their children. If assistance is required to ensure smooth communication, our Family law team are experienced in these situations, and if needed can prepare Minute of Agreements that stipulate child arrangements, as cost effectively as possible.