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JGM, Solicitor
Category: Law
Satisfied Customers: 9977
Experience:  30 years as a practising solicitor.
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Hi, Im in disagreement with my daughters father about access.

Customer Question

I'm in disagreement with my daughters father about access. For nearly a year i've been asking him to take more responsibility, he has told me he isn't able. The situation was exasperated by the fact I was subject to a newspaper expose in which I was painted in a bad light which culminated in a major row in which he then said he wanted full custody after saying he couldn't commit to having her regularly. He then reported me to social services whom then visited me as they legally have to, they were more than satisfied that my daughter is content, well brought up and amply provided for and closed the case. I have never taken drugs or been in trouble with the police. Since then he has been erratic and abusive via text, email and telephone. Due to his behaviour I am worried he will not hand her back to me if I give him access as I was told that since she was born in 2008 in Scotland where we currently reside there is no such thing as "custody". As I understand it it's 50% rights and responsibilities therefore he can legally keep her? I have postponed contact for this reason but I do not wish to do so as regardless of how I feel towards him I don't want my daughter to suffer as a result. I have requested several times for him to get in touch with a solicitor so as to put an access agreement in place on a legal document whilst we are awaiting the mediation I have arranged. He has now six weeks later got in touch with a solicitor whom has sent me a letter stating that he has given his word to them he will hand her back.
In summary,
. Does the lawyers letter have enough clout that he would have to give her back?
. If he did refuse to give her back would the police and or authorities be able to retrieve her without the need for legal recourse?

Kind Regards
Submitted: 2 years ago.
Category: Law
Expert:  JGM replied 2 years ago.
Thank you for your question.

I'm sorry that you're in this situation and will try to assist you. Firstly dealing with the issue of parental rights, custody, contact etc.

It's important that you know that there isn't such a concept as custody and access in Scots law any ore and there hasn't been since 1995. Legislation changed the position to talk of a parent with whom the child stays and a parent who has contact to a child. In 2006 the law further changed and said that a father who was not married to the mother at any time had automatic parental rights if the father was named on the birth certificate.

If he was not he would only derive parental rights if there was an agreement to that effect or a court order.

In practical terms, any father seeking contact to a child who didn't have parental rights has to ask the court to grant these rights before a contact order is made. In all other respects the father is the father.

Your problem appears to be that on the one hand you want your ex to have more responsibility and on the other he is making mischief by making stupid reports to the social work.

As he has given an undertaking via his lawyer that he will not refuse to hand you daughter back you can rely on that if he does so. What you should be doing now is getting an agreement written down via mediation if the two of you can't work it out independently. It appears he has been difficult that way.

If he does refuse to hand her back and you go to the police, who will be reluctant to get involved in civil matters, the letter from his solicitor may be of help. It depends what the police are prepared to do.

If they do nothing, you would have no option but to use the law and the courts. From what you say, however, and knowing parties in cases over the years, I don't think he will carry out his threat. He is simply trying to intimidate. Would he want or be able to take residence of his daughter. I very much doubt it and even if he did a court would not be for taking a young child away from mother without a very very good reason. And there isn't one here.

Happy to discuss further.

Please leave a positive response so that I am credited for my time.

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