Can you change a shared care arrangement in Scotland once it is up and running? A recent decision at Hamilton Sheriff Court shows how the court approaches that question. In Black v White, a father asked for more nights with his daughters and a residence order in his favour. The sheriff refused. The girls had settled well, they wanted things to stay the same, and he had not shown how the change would help them. For parents, the message is clear: the court looks for a reason rooted in the child’s welfare, not a contest over who is in charge.
When parents in Scotland separate, many settle into a shared care arrangement that works reasonably well. Over time, however, circumstances change and the relationship between parents can sour. At that point, one parent may want to alter the pattern of nights or ask the court to name them as the main carer.
This article looks at what happened in Black v White [2026] SC HAM 105 and what it tells you about the law. We explain how Scottish courts decide arrangements for children, why stability matters so much and how much weight children’s views carry. Finally, we set out what to think about before you ask to change a shared care arrangement in Scotland.
What happened in Black v White?
The parents married in 2011 and separated in 2020. They have two daughters, who were aged 12 and 10 when the sheriff gave his decision. From around 2021, the girls lived broadly equally with each parent. The court then formalised that pattern in an order in November 2023.
Sadly, relations between the parents deteriorated after separation. They disagreed about schooling, health matters and the girls’ appearance, and by April 2025 they had stopped communicating altogether. Even so, a child welfare reporter found on three separate occasions that both girls were happy with their routine and loved both parents.
At the final hearing, known as a proof, the father asked for the children to spend nine nights in every fortnight with him. By the time of submissions, he had reduced that to eight. He also wanted a residence order naming him as the main carer. For her part, the mother asked the court to keep the existing arrangement.
Sheriff J Speir refused the father’s request and made a final shared residence order on the existing pattern. He also set out how the parents should share school holidays, with alternate full weeks over the summer. Separately, the sheriff decided how to divide the sale proceeds of the former family home. Our guide to the family home in a Scottish divorce explains how the courts usually treat property.
How do Scottish courts decide arrangements for children?
Section 11 of the Children (Scotland) Act 1995 governs disputes about where children live. When deciding whether to make an order, and what order to make, the court applies three linked principles. Our earlier guide to child contact and residence arrangements covers the wider background.
The child’s welfare comes first
The welfare of the child is the court’s paramount consideration. In other words, it outweighs everything else, including what either parent wants or feels is fair. Importantly, the court starts with no leaning in favour of mothers or fathers.
No order unless it helps the child
Next, the court must not make an order unless doing so is better for the child than making no order at all. Lawyers often call this the minimum intervention principle. In practice, it means a judge will not change arrangements simply because a parent asks.
The child’s views must be considered
Finally, the court must give the child a chance to express views, if they wish, and must have regard to them. It does this taking account of the child’s age and maturity. We look at how that worked in this case further below.
Why does a parent asking for change need a good reason?
Cases about children carry no strict burden of proof. Even so, a parent who wants to upset an established arrangement must give the court material to justify the change. The sheriff relied on MS v SS [2012] CSIH 17, an Inner House decision. It describes this as an evidential burden rather than a legal one.
In Black v White, the father did not meet that burden. His proposal had changed shortly before the proof and changed again during it. As a result, he could not explain clearly how the new pattern would work in practice, or why it would be better for the girls.
His main reason was that he wanted the court to recognise him as the parent in control. He believed this would counter what he saw as his alienation from the children and improve communication with their mother. However, the sheriff found that the evidence did not support the alienation he described. Even if it had, there was no link between that and the children’s welfare.
Notably, the sheriff did not find serious welfare concerns about either parent. Instead, he described a case “characterised by entrenched parental conflict”. The routine was long established, and the children, their mother and even the father’s own mother were content with it. So the sheriff had little hesitation in leaving it in place.
How much weight do children's views carry?
Under the 1995 Act, the law presumes that a child aged 12 or over is old enough and mature enough to form a view. That does not mean courts ignore younger children. On the contrary, courts regularly take the views of children well under 12 and give them weight according to their understanding.
In this case, an experienced child welfare reporter spoke to the girls three times between 2023 and 2025. Each time, both said they were content with the arrangement. By the last report, the older girl was leaning towards more time with her mother, but she still wanted the shared pattern to continue.
Why the court did not ask the children again
Before the decision, the mother’s solicitor suggested obtaining the children’s views once more. The sheriff decided that was unnecessary. Their views had been consistent throughout, and the latest report was still recent. He was also conscious of the older girl’s growing discomfort at repeated questions. She did not want either parent to think she was taking sides.
A point about confidentiality
The case also highlights a practical issue. The reporter had told the older girl that he could keep her views private. He then asked the court not to share his report. According to the sheriff, it was inappropriate to give that reassurance without the court’s prior approval. He therefore let the parents’ solicitors see the substance of the report. That allowed them to take instructions from their clients.
For parents, the lesson is simple. Children’s views matter, but parents should shield children from the pressure of the dispute. Talking to them about the court case, or asking them to choose, rarely helps.
Can shared care work when parents don't get on?
Section 11(7D) of the 1995 Act adds a further check. Where an order would need parents to cooperate, the court must consider whether making it is appropriate. That is especially relevant to a shared care arrangement in Scotland, which usually depends on parents working together.
Here, communication between the parents had broken down completely. Even so, the sheriff kept the equal arrangement in place. The deciding factor was that both girls continued to thrive under it, so changing it would not have been better for them.
That said, the sheriff was clear that the conflict had to stop. He urged both parents to set their differences aside and find a way to communicate, and he suggested that a co-parenting app might help. He also asked them not to use the children to pass messages, except in exceptional circumstances. Both parents had done this in the past, and both accepted it was wrong.
If you are struggling to communicate with your child’s other parent, family mediation can help you rebuild a workable routine. Relationships Scotland offers family mediation across the country, and our article on how mediation compares to litigation explains the options.
Does a residence order give one parent control?
Many parents with a shared care arrangement in Scotland assume that a residence order would put one parent in charge. That is not how it works. A residence order regulates where a child lives. On its own, it does not remove the other parent’s parental responsibilities and rights.
Both parents usually keep the right to play a part in their child’s upbringing. Moreover, section 6 of the 1995 Act sets out how parents should approach major decisions, such as choosing a school. The parent making the decision must give the child a chance to share their views. So far as practicable, that parent must also have regard to the views of the other parent.
Black v White shows what can go wrong when that does not happen. Before the proof, the father made a placing request for the older girl without consulting her mother. She wanted to attend a different school. Eventually, the dispute reached the court, which refused his application for a specific issue order. In the end, she went to her preferred school and has settled well.
Sometimes parents cannot agree on a single question, such as schooling or medical treatment. In that situation, a specific issue order may be the right tool. It lets the court decide that one question without changing the wider care arrangement.
What this means if you want to change your shared care arrangement in Scotland
Every family is different, and Black v White is a single sheriff court decision. Even so, it reflects well-established principles. If you are thinking about asking to change a shared care arrangement in Scotland, these points are worth bearing in mind.
- Start with your child. Ask how the change would make their life better, not how it would make things fairer for you.
- Be specific. Work out exactly which nights would change, how handovers would work and how you would share school holidays.
- Rely on real evidence. Base any concerns on what you have seen, not on assumptions about the other parent’s motives.
- Stay consistent. Changing what you are asking for late in the day can undermine your credibility.
- Keep children out of the dispute. Do not ask them to pass messages or to choose between you.
- Try to agree first. Negotiation through solicitors, mediation or a Minute of Agreement can often settle matters without a court hearing.
Equally, if you are the parent defending a shared care arrangement that works, the case offers some reassurance. A court will not disturb a stable routine without good reason. Even so, it is worth taking advice early, because how the arrangement has worked in practice will matter.
Why Choose Pomphreys?
Pomphreys has been helping families across Lanarkshire since 1897. Partner Iain Wilson leads our family law team. We advise parents on setting up, reviewing and defending a shared care arrangement in Scotland, from first agreements to court proceedings.
We take a practical, child-focused approach. Where possible, we help you reach agreement through negotiation or mediation, which is usually quicker, less costly and less stressful for everyone. When a matter does need to go to court, we prepare your case carefully and present it clearly, with your child’s welfare at the centre.
As a local firm based in Wishaw, we understand the Lanarkshire courts and the practical pressures families face. You will always get straightforward advice in plain English. You can find out more about our family law services.
Talk to us about your children’s arrangements
Perhaps you want to change a shared care arrangement in Scotland, or the other parent has asked to change yours. Either way, we can help you understand where you stand. Call our Wishaw office on 01698 373365 or get in touch online for a confidential conversation with our family law team.
Frequently Asked Questions about Changing a Shared Care Arrangement in Scotland
Can I change a shared care arrangement in Scotland?
Yes. You can agree a change with the other parent, or ask the court to vary an existing order. If you go to court, you will need to show that the change is better for your child than leaving things as they are. Because stability carries real weight, the court will want a clear, welfare-based reason and a practical plan.
Does shared residence mean a 50/50 split?
Not necessarily. A shared care arrangement in Scotland does not have to mean equal time. A shared residence order simply means that a child lives with both parents. Some families share care equally, while others use a pattern such as eight nights and six. The court decides what suits the child’s needs, routine and schooling.
At what age do a child's views count in Scotland?
Under the Children (Scotland) Act 1995, the law presumes that a child aged 12 or over is mature enough to form a view. Younger children can, and often do, give their views too. The court then decides how much weight to give them, depending on the child’s age, maturity and understanding.
Does a residence order give one parent control?
No. A residence order sets out where a child lives. By itself, it does not remove the other parent’s parental responsibilities and rights. Both parents normally remain involved in major decisions, and each should take account of the child’s views and, where practicable, the other parent’s views.
Do we have to go to court to change our arrangements?
No. Many parents agree changes between themselves, through solicitors or with the help of a family mediator. You can then record what you agree in a Minute of Agreement. However, if a court order already exists, take advice about whether you also need to vary it.
This article is by Iain Wilson
Iain Wilson, Partner
Iain Wilson graduated from Glasgow University with honours. He joined Pomphrey’s in 1997, becoming a Partner in 2004.
Iain deals with all civil court matters and specialises in Family Law, Divorce, Separation, Matrimonial and cohabitation claims, and Contact and Residence orders in relation to children.
Tel: 01698 373365
Email: icw@pomphreyslaw.com
