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F E Smith
F E Smith, Advocate
Category: Family Law
Satisfied Customers: 11892
Experience:  I have been practising for 30 years.
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Me and my boys mum are separated he resides with her but

Customer Question

Me and my boys mum are separated he resides with her but wants to live with me he’s 11 there’s no court order and Iv got him at the moment but he doesn’t want to go back, can I take him
Submitted: 6 months ago.
Category: Family Law
Expert:  F E Smith replied 6 months ago.

Good morning. I need more info before i answer fully - also i apologise if delayed in replying

Were you married?

How long have you been together?

How long ago did you seperate?

are you prepared to go to court?

Customer: replied 6 months ago.
Morning we were together for about 11 years were not married been split up for about 2 years now, there’s signs of her neglecting him eg not washing or feeding him properly and drug usage in front of him in the house, also what makes things harder is she lives in England and I live in Scotland I’m fully prepared to go to court, I’m in England now but will be heading back to Scotland tomorrow would I be breaking any law if I took him with me as he really doesn’t want to go back with her
Expert:  F E Smith replied 6 months ago.

I’m assuming that you are named on the birth certificate or that you have parental responsibility by virtue of a court order.

If that’s the case, and there is no court order as to who the child should live with, then the child can live with either and the police should not get involved. Having said that, very often they do get involved when they shouldn’t.

If you keep the child, she will report it to the police and the police will get involved albeit that it may not go anywhere.

The primary concern is the child’s welfare and if you suspect there is neglect, you can of course refer the matter to Social Services and provided you have evidence of this neglect, you can make an emergency application to court for the child to come and live with you.

The difficulty for you is that although the child seems to want to live with you, moving from England to Scotland would be a big uproot it seems including school and therefore you would need some proposals as to what happens with school.

At 11 years of age, the court is not going to take that much notice of what a child wants because children at that age are relatively easy for a parent to manipulate.

Because of this alleged drug use, this should be immediately reported to Social Services. If there is another parent willing to take the child, then the child will not be taken into care.

At this stage because of the allegations you are making about not washing feeding and using drugs, you could make an emergency application to court for a temporary order pending a full hearing. In this respect, social services could be extremely useful to you.

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! Opinion, (Although there is an incentive scheme where the more five-star ratings I get, I do actually get a pat on the head! :-)) All you need to do is press Submit. Thank you.

If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.


Customer: replied 6 months ago.
I’m named parent on the birth certificate there’s no court orders in place as of yet, my son starts secondary school after the holidays and Iv set up a school he could go to in Scotland with a 5star ofsted report. So I need to ring social services and should I apply for an emergency application to court in England or Scotland?
Expert:  F E Smith replied 6 months ago.

Yes, that’s what you need to do.

You apply in England for a Child Arrangement order

It would usually help if you attached a Certificate of Urgency (a letter) explaining exactly why this is urgent.

Unless you have experience of making these applications, you might want to entrust it to a solicitor.

Customer: replied 6 months ago.
could I still take my son to Scotland and get him enrolled in his new school while I push for residency?
Expert:  F E Smith replied 6 months ago.

Because he has historically lived with the mother, it’s not an action that I would suggest you take because it could prejudice your eventual application for the child to live with you as it could be seen as reckless and irresponsible although if you have the support of Social Services, that may change things.

The correct way of doing it is to make the emergency application. That could be in court in a couple of days

Customer: replied 6 months ago.
I have support from a social worker they’ve advised me I’m within my rights to take marley with the concerns raised and to get a child arrangement order or residence order wether that in England or Scotland
Expert:  F E Smith replied 6 months ago.

Make sure that you have whatever you have been told in writing.

It is not unknown for social services to subsequently say that, “we didn’t say that”.

You could make the application in Scotland or England but I have no experience of making such applications in Scotland or how they are dealt with because it’s a completely different law although any Scottish order is enforceable in England

Before you go (you can come back here at any time as the thread stays open), please don’t forget to use the rating service because that gives me credit. It doesn’t just give me a pat on the head! The thread remains open. We can still exchange emails.

Kind regards.


Customer: replied 6 months ago.
If my ex gets the ball rolling with court before I do what sort of effect will that have?
Expert:  F E Smith replied 6 months ago.

It just means that you are defending her action on the basis of what would have been your own application and you asked the court to make an order in your favour. How you deal with its the same, it’s just different paperwork.

Customer: replied 6 months ago.
What would happen if I got my application in at a Scottish court and she got hers in in and English court
Expert:  F E Smith replied 6 months ago.

When you submit your application, you have to confirm that there are no other proceedings.

If both of you issue proceedings without the other knowing, the court would decide which one was to be dealt with.

This is one of the reasons that I suggested that you made the emergency court application without just taking the child of your own volition

Issuing proceedings in Scotland against someone in England (and vice versa) requires extra paperwork which is why I suggested that you issue proceedings in England.