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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9979
Experience:  30 years as a practising solicitor.
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My partners 14 year old son has decided to walk out and live with his

Resolved Question:

My partners 14 year old son has decided to walk out and live with his father. This decision has no bearing on his relationship with us apparently and even his father has said he thinks he needs to be with his mother. Can she enforce a residency order upon him? It's fairly obvious why he has chosen to go and live with his father and it's not in his best interests (father leaves him alone regularly at night as he works a shift pattern - we have a long list of grievances against the father including being locked up for domestic violence). The 14 year old wants to be a "bum" and has already started causing problems at school since he left. We want a detailed opinion on how likely we are to be successful at going for a residency order.
Submitted: 1 year ago.
Category: Scots Law
Expert:  Remus2004 replied 1 year ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
Thanks for your interest in me but it isn't really my area.
I will move this to Scots law.
The only point I would make is that I wouldn't get involved in this if I were you. It is not your problem and it can only lead to problems for you.
Customer: replied 1 year ago.

I thought you might say that.

Don't get involved. My partner that stays with me is struggling emotionally with this and has asked me to get involved...

Customer: replied 1 year ago.

Hello Jo - I was looking for quick answer to my question - this is what I had paid for - can you tell me when someone will get back to me.

Also I didn't see any option to review your answer - only an annoying advert asking me to sign up for a monthly trial that I have already said I don't want.

Hope someone can get back to me asap?

Expert:  Remus2004 replied 1 year ago.
I won't have any way of knowing when somebody will respond I'm afraid.
I realise your partner may have asked you to get involved but you are the one at risk here and, quite frankly, you should be taking care of yourself.
I will try to see if anybody else can take this over.
Customer: replied 1 year ago.

I'm not sure why you are saying I am at the one at risk Jo? She is my common law wife?

Why am I at risk?

If you can't get anyone to respond how do I go about cancelling my money I have paid? I paid for a quick detailed response!

Expert:  JGM replied 1 year ago.
Thank you for your question which my English colleague has kindly transferred to me. I am a Scots lawyer and will help you with this.
I think there are more than reasonable prospects of a residency order. Under the Children (Scotland) Act 1995 a child can express a preference as to which parent he wants to stay with. However, a court, whilst having to take that into account, also has to take account of all other relevant factors. In your partner's case the following are relevant:
1. Mother and father both want the child to stay with mother.
2. Father works nights and can't be there to supervise.
3. Child's poor behaviour and outlook on life.
4. Deterioration of behaviour at school, and presumably, generally, when he left.
Note that any action for a residence order will be against the father. If the father concurs with the action, the order is likely to be granted notwithstanding any argument from the child, who does have the right to seek separate legal advice and let the court know what he thinks. However, I think a sheriff would be concerned at the deterioration in behaviour and would insist that the child stay with his mother at the moment.
I have to say though that enforcing the order would be up to the parents. The court has no power to physically compel the child to stay with mother.
Happy to discuss further.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 1 year ago.

Thanks for your response. What is the point of pursuing what could be a lengthy and costly process if in the end the court has no power to compel the child? What would be the benefit of obtaining a court order? Would the mother still have to pay child care costs ?

With the limited knowledge we have provided you with (we have lots more to strengthen our case) could we represent ourselves in to save money?

Should we seek an alternative route?

Sorry for the extra questions but I would like a little more detail before we close this out if that is ok.

Thanks again,


Expert:  JGM replied 1 year ago.
No problem, I am happy to help.
A court order may have a psychological effect on the child. It may also allow the father to say "sorry, you can't stay here, the court says you have to stay with your mum."
The sheriff may also be prepared to meet with the son to determine the issue.
And quite simply the gravitas of the proceedings may help to kick him into touch.
Where a parent breaches a court order they can be found in contempt of court and fined or, as a last resort, imprisomed. That could never happen to a child, I'm afraid.
In theory you could represent yourself but the Writ that has to be drafted and the documents for service would have to be prepared by a solicitor. The raising of a court action in the family section of the sheriff court is not just a firm filling exercise. Documents have to be drafted from scratch. The sheriff clerk would give you a certain amount of help with the procedures but legal input will be required.
The only alternative route is for father to make son return to mother and refuse to allow him to stay at his house.
That presupposes that you don't want social work or child psychologist input.
Customer: replied 1 year ago.

Thanks for the swift response. Sounds like we are between a rock and a hard place.

I've heard that obtaining a residency order can take many months and thousands of pounds in fees. If the end result is that the child refuses to move I can't see the point in even pursuing this.

My gut feel is we try to sit down with the lad and his dad father as you say or use the threat or a residency order to shake him up a little.


Expert:  JGM replied 1 year ago.
As far as timing is concerned, the court would fix a child welfare hearing within about four or five weeks of the action being raised. All parties would have to attend that hearing and the court has the power to make an interim residences order. So whilst the whole action could take a number of months an interim order could be got relatively quickly.
I hope this helps and would ask that you leave a positive rating for me so that I am credited for my time.
Don't hesitate to ask for me in the future if you need further help.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9979
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.

Lorraine has asked me one final question - if she is granted the interim or final residency order will she still be liable for child maintenance payments if the lad chooses not to move back in despite the order being granted. When the lad moved out, his dad went straight to CMS without talking to us about finances and she has been hit with a 400/month payment despite her wanting her son to say with her...not helpful at all. Her feeling at the moment is she doesn't see any advantages to being granted an order.

Happy to leave great feedback you have been really helpful!

Expert:  JGM replied 1 year ago.
No, if she is the parent with care she would stop paying child maintenance and the father would correspondingly become liable to her for child maintenance.

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