• Key takeaways:
  • In any case where a decision needs to be made by the court about a child, the court is likely to fix a hearing called a Child Welfare Hearing.
  • We appreciate that going to court can be a daunting experience, however, please be assured that your solicitor will support you every step of the way.
  • No one else is entitled to be present during the hearing; however, you are welcome to bring someone to sit with you outside the court to offer moral support.
  • The court is required to consider the child or children’s views, where practicable.
  • The hearing will take anything between 15 minutes to one hour to conclude. The sheriff will make their decisions at the end of the hearing and this will be a verbal update.
  • For more Family Law support, please check out our resources outlined in the below article.

In any case where a decision needs to be made by the court about a child, the court is likely to fix a hearing called a Child Welfare Hearing. The court has wide powers to make orders about children, on the basis that these orders are in a child’s best interests. Most commonly these will focus on where a child lives, known as residence, and how often the child sees the parent they do not live with, known as contact. Historically, these orders were known as custody orders and access orders.

The court can also make decisions about issues of major importance, for example which school a child should go to or what surname the child should have.

Anyone who has an interest in the welfare of the child can seek an order regarding a child. That might be one of the child’s parents, a grandparent, sibling or other family members. Orders can even be sought by non-relatives if they are able to demonstrate a close connection to the child, for example a partner of the child’s deceased parent.

How to prepare for the hearing

We appreciate that going to court can be a daunting experience, however, please be assured that the Johnson Legal Family Law Solicitors are regularly in court and you will be supported every step of the way. We will speak with you before each hearing to confirm what we are asking the court to do, and we will be with you at court.

We would encourage you to write down any questions you might have before the court hearing and we can discuss these with you in advance. You may be anxious about meeting your ex at court however, your Family Lawyer can make arrangements to ensure you’re not waiting in the same area before the hearing.

Who can attend the hearing?

The first child welfare hearing is usually fixed when the court is told that the case is defended, which means that the orders sought by the person raising the case (the pursuer) are opposed (by the defender). It normally takes place within four to six weeks of the case being defended. The timing of the hearing will depend on which court the case is taking place in. Almost all Child Welfare Hearings take place in the sheriff court in front of sheriffs, although these can also take place in the Court of Session before judges.

Child welfare hearings are private hearings. The people entitled to attend the court hearing itself are the parties involved in the action, and their solicitors if they are represented. The court expect the parties in the action to be present at court, and this is usually the child or children’s parents. No one else is entitled to be present during the hearing however, you are welcome to bring someone to sit with you outside the court to offer moral support whilst you wait for your case to be called.

How is a child welfare hearing conducted?

Child Welfare Hearings are very flexible. Your solicitor will usually tell the court what sort of order you think should be made then inform the sheriff on the up-to-date position for the child or children and their care arrangements. This might include who they are living with and how much time they spend with the other parent or party.

Does the court take the child’s view into account?

The court is required to consider the child or children’s views, where practicable. Children who have not started school are generally considered too young to express a view. Children with additional needs may be unable to give a view, and some children find it too distressing or confusing to be asked what they think. Your solicitor will discuss this with you to consider the best way to take your child’s views. A child’s view is not binding on the court, and sometimes the court will make decisions which are not what the child said he or she wanted to happen.

It is most common for the sheriff to make interim orders, especially at the first Child Welfare Hearing. This means that they are not orders which will be in place necessarily forever, but they are the arrangements the court expects to be obeyed until further orders or final orders are made.

The sheriff will hear from both solicitors representing both parties. If one party is not represented by a solicitor, that party will have an opportunity to speak and set out their case. The sheriff can ask the parties themselves a question at any time.

The sheriff can consider any documents that are relevant and that you may have lodged as what is called a “production in your case”. They will be presented to the sheriff at the hearing by your solicitor.

When will I know the outcome of the hearing?

The hearing will take anything between 15 minutes to one hour to conclude. Some hearings are shorter, particularly if things are agreed before the hearing and some can be much longer.

The sheriff will make their decisions at the end of the hearing and this will be a verbal update. It will then be issued in a document called an interlocutor which is the court’s order and your Family Lawyer will send this to you. The interlocutor is binding upon the parties to the action, and there are penalties that the court can apply if one party fails to act in accordance with orders made by the court.

The sheriff may continue the case to another child welfare hearing approximately 6-8 weeks in advance to see how the arrangements for the child or children are working out subject to what has been ordered in that hearing.

During the lifetime of your case, there can be several child welfare hearings depending on the nature of the case and to what extent the case is opposed and what is in dispute.

Often cases are resolved by a series of Child Welfare Hearings, but if the court feels that evidence needs to be heard from third party witnesses, a hearing called a proof can be fixed for this to happen.

Additional Family Law support

For more Family Law support, check out our TikTok channel where Family Lawyer Hayley Mitchell has outlined what to expect at court in the following video.

Our Divorce and Separation Wellbeing page will also provide you with some guidance around how to support your mental wellbeing during a separation or divorce alongside signposting you to useful Family Law resources.

We offer all our clients a free, 15-minute consultation call with one of our solicitors to determine how we can help. Call our office on 0131 622 8477 email [email protected] or submit your enquiry here.