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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10905
Experience:  30 years as a practising solicitor.
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I live in Scotland and divorced from my husband a year ago.

Resolved Question:

Hi I live in Scotland and divorced from my husband a year ago. We entered into a shared care agreement with equal contact with our 10 year old son. We each had our son 2 weeks a month, alternating one week at a time. This agreement was registered at the books of council and session.
Since the beginning of 2015 I have been unwell and the father has had my son from Sunday evening until Friday morning. I have my son from Friday afternoon until Sunday evening when he returns to his father. Due to my health I had little choice to accept the new arrangement.
Is the agreement we entered into a year ago now void due to the new arrangement since the beginning of 2015? I had read that such agreements can only be changed by a court order. However I have been told that the agreement no longer stands and as it was not a court order that decide the shared care arrangements, a court order can't change the agreement. Can you clarify? What is the point of having an agreement registered in the books of council and session if one parent can do as they please
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question. I am a Scots solicitor and will help you with this.
An agreement in relation to child care can be founded on in any court proceedings as evidence of what the parents considered to be in the best interests of the child at the time the agreement was entered into.
However, unlike a financial provision for example, there is no way of directly enforcing a child care clause in a registerd Minute of Agreement without going to court. And if a case does go to court, the court will look at things of new, having regard to what it considers to be in the best interests of the child at that time.
The terms of the agreement will be looked at and considered however, and the court will tend to start with that and ask if there is any reason why the arrangement stated in the agreement should not be reinstated, assuming your health is back to normal.
Happy to discuss further. The answer to your specific question is that an agreement can be varied by the court or by further agreement between the parties.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.

Thanks for your reply.

As residency and contact have changed since the shared care agreement was entered into, does this mean it is unenforceable unless I go to court where a sheriff would have regard to the agreement and any new circumstances?

Could you also confirm if a shared care agreement can only be altered by a court order (the shared care agreement I entered into with ex was done my mutual agreement and not by a court order). The agreement was registered in the Books of Council and Session. There is an article on GOV.UK website that states a shared care agreement registered in BCS is a legally binding agreement and can only be varied by a court order. I was given this information by the Citizens Advice Bureau.

Thanks.

Expert:  JGM replied 2 years ago.
Yes, any agreement for the care of children can only be varied by the court and can only be enforced by the court.
An agreement is fine until one party ceases to agree to it. Then the court has to intervene.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10905
Experience: 30 years as a practising solicitor.
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