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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12195
Experience:  30 years as a practising solicitor.
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Absent Father seeking access to son in scotland, age 5

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I have been going through mediation for the past 5years with my child’s father. The last contact was in Feb 2012 as he has never appeared again since. He has now reappeared and wants access to my son, again. My son is 5. This is now the 3rd time that he has disappeared and reappeared in his life, every time has been documented by solicitors. I am now at the point of despair as the last ‘no show’ had an effect on my son in that he was very upset and would not leave myself or my partner for any length of time, for fear of us not coming back. I have been with my partner (now fiancée) since my son was about 7 months and it is my partner whom he calls ‘dad’ he has been in his life almost every day since we got together. We bought a hose together 2 years ago and are getting married in May 2014. I feel that mediation is not working and I have no option but to allow a court to make a decision. I am not entitled to legal aid, but he is as he is on a low income. I hear that legal aid changes in April of this year – will he still be entitled to legal aid if this goes to court? And, what chance does my partner and I have if we were to apply to the court for parental rights / responsibilities for my son if his father has been estranged for the past 12 months? We live in Scotland.

Thank you for your question.

There are various changes to legal aid going to take place shortly but none of these that I am aware of will make any significant difference to the way that it operates for family law related matters. To check whether someone qualifies financially for legal aid there is a calculator available at Other than this the legal aid board has to be satisfied that it is reasonable for legal aid to be granted.

If I was your solicitor I would be advising you to object to any application made by him for legal aid to seek a contact order given his deplorable record in following through mediation and the upset that this has caused to your son.

I consider that any application for a contact order must be resisted in the best interests of your son. If your fiancé were to apply for parental rights or to adopt your son where consent of the natural father is needed, you have stateable grounds to have that consent dispensed with again because a court is interested in ensuring that a child has a stable upbringing.

However, these are only my thoughts based on your narrative. Every case is determined on its own facts and in much greater detail. Even if you have to pay privately you should ensure that you have a good family lawyer on your side.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
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Customer: replied 5 years ago.

Thank you. We would like to apply for parental rights / repsonsibilities for my finacee, however it seems very daunting as most of the information I have read on this seems to be fairly in favour of the biological father - do you believe that we would have a strong case for this and if we were to go ahead and apply for this, would my child's father have to reapply for legal aid to fight the case?

It is quite daunting especially when the natural father is in the background not really interested in the child but more in himself.

The court will start on the basis of why should the natural father not get parental rights. If it is argued successfully that he should not, then you can start the application for your fiancé.

There is a lot written about this but the law is contained in the Children (Scotland) Act 1995 which you can read online, particularly section 11 dealing with the grant and removal of parental rights.

I don't know all the facts so I can't comment on whether you have a string case, but you certainly have a case to state given that the natural father has not shown much interest and on three occasions has walked away from his son.

He would have to apply for legal aid for this particular matter.