Mental Health, Parental Responsibilities and Rights: What Courts Consider in Family Law Cases

The mental health of a child’s parents is an important consideration in Scottish family law – especially in cases when courts are asked to decide who a child should live with and spend time with. Although mental health challenges alone do not prevent a parent from seeing their child, courts will consider any important impact it may have on their child’s welfare.

The Legal Framework

While many parents are able to provide a safe and loving environment for their children despite living with mental health conditions, the courts may consider a parent’s mental health if there is evidence that a mental health condition affects their ability to care for their child or if it presents a risk to their child’s safety, development, or emotional wellbeing.

Under the Children (Scotland) Act of 1995 and later, the Act of 2020, three principles guide Scottish courts when making decisions in cases where a parent’s mental health affects their ability to care for their child:

• The Welfare Principle: The child’s welfare is prioritised above all else.
• Views of the Child: Children must have an opportunity to give their views on any order that might be made where doing so is practicable.
• Minimum Intervention: Courts should only make an order if doing so is better than not.

Types of Orders Where Mental Health is Considered

Court orders are typically made when parents cannot come to an agreement between themselves:

Residence Orders (where the child lives)

In cases where parents can’t agree on who the child will live with, the court may consider:

• The stability and safety of the parent’s home environment.
• The parent’s ability to meet the child’s needs – both emotional and physical.
• The parent’s history of mental illness, their current state, and their treatment and support.

Contact Orders (time with the non-residential parent)

If a non-residential parent seeks contact with their child but concerns have been raised about that parent’s mental health, the court can take the following actions:

• Order supervised or supported contact.
• Reduce or temporarily pause contact if it puts the child at risk.
• Encourage contact if the relationship is positive.

In such cases, evidence such as psychiatric reports, social work assessments, or medical records, may be used to understand the nature of a parent’s condition and how it could impact their child. Scottish courts do recognise that even with a mental health condition, many parents are still able to provide loving and stable care which is why cases are considered on an individual basis.

The courts take a measured and child-centred approach when making decisions and always prioritise the child’s welfare, development, and emotional security.

Parents experiencing mental health challenges should not assume that their conditions will automatically prevent them from caring for or seeing their children. In fact, with the right support and legal guidance, parents can often continue the role they had in their children’s lives before any mental health difficulties were experienced, even if that role was primary carer.