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Parenting and the Law

Legal parenthood is centred on parental rights and responsibilities (‘PRRs’). The Act defines these separately, though they are in practice intertwined. The responsibilities of parents are:

  • to safeguard and promote the child’s health, development and welfare;
  • to provide, in a manner appropriate to the stage of development of the child, direction and guidance to the child;
  • if the child is not living with the parent,to maintain personal relations and direct contact with the child on a regular basis; and
  • to act as the child’s legal representative

Each of these responsibilities apply only so far as they are practicable and in the child’s interests. Though a child becomes an Adult at age 16 in Scotland, the responsibility of guidance remains in effect until the new Adult turns 18. This feature of the law recognises the reality that children transition into adulthood, and compels those with PRRs to guide young persons as they take the first steps of Adult life.

Parental Responsibilities

Parental rights are closely mirrored by parental responsibilities. It is crucial to note that the law is not designed to give parents the right of ‘ownership’ of their children. For example, the right to ‘control’ the upbringing of the child is given effect by the responsibility to provide appropriate guidance to the child. The rights recognised are centred on promoting and safeguarding the child’s best interests. This purpose of the law is further revealed in that the exercise of PRRs are subject to any orders of the court. For example, in cases of separation, a contact order can be implemented to regulate the PRRs of the ‘contact parent’ to maintain contact with the child. An order can even be made to strip a parent of any or all of his PRRs, where this is appropriate.

Persons Without PRRs

The Act recognises situations where a person cares for a child, but does not have any or all of the PRRs described. Provided that the carer is at least 16 and caring for someone under 16 (and excluding a person caring for or controlling a child in a school environment), the Act grants authority to the carer to do what is reasonable in the circumstances to safeguard the child’s health, development and welfare. The law recognises the diversity of family arrangements in the 21st century, and that those with authority in the family home would not always be recognised as parents in the classical sense.

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If you would like to discuss your circumstances in relation to a child, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail:

Guardianship Orders: What You Need to Know

‘Capacity’ is a medical and legal term which refers to a person’s ability (or lack of ability) to deal with their own affairs. The Adults with Incapacity (Scotland) Act 2000 provides various legal instruments for dealing with affairs on behalf of another person who lacks capacity. The two primary instruments under the Act are Power of Attorney and Guardianship Orders.

Guardianship Orders are sought for individuals who lack capacity, but who had not created a valid Power of Attorney beforehand.

If you are beginning to think that Guardianship applies to you or a loved one, here is what you need to know:

  • Power of Attorney and Guardianship Orders, though similar legal instruments, are granted in different circumstances (for further details, see our blog).
  • There are 2 types of Guardianship Orders. Welfare Guardianship Orders grant the Guardian various day to day powers set out in the order. For example, deciding where the incapacitated Adult (‘the Adult’) should live and how the Adult should dress and consenting to medical treatment on behalf of the Adult. Financial Guardianship Orders grant the Guardian various financial powers set out in the order. For example, managing the Adult’s bank accounts and buying or selling property for the Adult.
  • An individual can seek Guardianship orders alone, or jointly with one or more individuals. Where competing applications are made, only one can succeed.
  • The Adult’s local authority can be appointed Welfare Guardian, but not Financial Guardian.
  • Legal Aid is available and Guardianship applications are generally free.
  • The entire process, from start to finish, takes approximately 3-6 months.
  • Guardianship orders are typically granted for a duration of 3-5 years. In exceptional cases the order/s may be granted indefinitely.
  • Guardians are supervised by the local authority’s social work department, the Office of the Public Guardian Scotland and the Mental Welfare Commission. Annual accounting of expenditure is required for Financial Guardians.

If you would like to discuss applying for Guardianship please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail:

If you would like to learn more about Guardianship Orders, please visit the website of the Office of the Public Guardian Scotland:

Creating a Power of Attorney: Why You Need a Solicitor

A Power of Attorney is a legal document that allows you (the ‘Granter’) to nominate someone (the ‘Attorney’) to manage your affairs. Unlike Guardianship Orders, which are granted by a court in favour of someone else when you are deemed to lack ‘capacity’, the ability to manage your own affairs, you can grant a Power of Attorney while you have capacity. Whereas the Guardianship order is a complicated reaction to an existing problem, the Power of Attorney is a relatively straightforward pre-emptive strike, reducing the impact of the problem before it arises.

Creating a Power of Attorney therefore provides an effective means of safeguarding your interests against any future event when you are deemed to lack capacity, for example, being diagnosed with Dementia. Creating a Power of Attorney is a relatively painless matter which eliminates the need for the lengthy legal process which is part and parcel of Guardianship applications. A validly created Power of Attorney provides much needed assurance for any individual experiencing declining health, or for any individual simply seeking the comforting knowledge that future needs have already been provided for.

The Power of Attorney confers wide-ranging powers to the individual or individuals you nominate to be Attorney or Attorneys. There are generally two types of Power of Attorney:

1) The Continuing Power of Attorney, which can grant the nominee (‘Continuing Attorney’) powers to manage your property and financial affairs, for example, selling your home or managing your bank accounts. The Continuing Power of Attorney is effective from the moment the Office of the Public Guardian Scotland (the public body responsible for registering and monitoring the exercise of Power of Attorney instruments) registers the document. The Continuing Power of Attorney is effective from the moment of registration regardless of whether the Granter has capacity to make his/her own financial decisions.

2) The Welfare Power of Attorney, which can grant the nominee (‘Welfare Attorney’) powers to manage your ongoing welfare needs and health needs, for example, making healthcare decisions on your behalf, or deciding where you should live. Even when registered, the Welfare Attorney can only make decisions on matters which the Granter is no longer capable of deciding on.

3) Both types can be merged into a single Combined Power of Attorney, granting financial and welfare powers to the Attorney.

Though the extent of the powers granted are dependent on your wishes (and how the document is drafted), granting a Power of Attorney inevitably amounts to a very significant transfer of power

to the nominated Attorney. You must have complete trust and confidence in the Attorney to ensure that your interests are preserved, rather than endangered. The decision to create a Power of Attorney should never be taken lightly; you should always consult a solicitor to ensure that you are making an informed decision, and crucially, that you are granting powers only to the extent that this coincides with your wishes.

Here are some of the key reasons you should consult a solicitor when creating a Power of Attorney.

1) QUALITY : Scottish solicitors are governed by the Law Society of Scotland. You can be sure that the solicitor you engage is held to the highest standards of conduct and quality of work

2) CORRECT CHOICES : A solicitor can bring an experienced outside perspective. They can help you to make the correct choices in terms of the powers you wish to grant and who you wish to grant these to.

3) SOLICITOR-CLIENT RELATIONSHIP : Engaging a solicitor confers all of the benefits of a solicitor-client relationship. The solicitor will maintain complete confidentiality and represent your interests alone, and not the interests of, for example, other family members or nominated Attorneys.

4) MEMBER OF ‘PRESCRIBED CLASS ’: sections 15(3)(c) and 16(3)(c) of the Adults With Incapacity (Scotland) Act 2000 (or ‘AWISA’, the legislation governing Power of Attorney) provides that a solicitor, like a doctor, is a person able to assess your capacity and whether you are subject to undue influence. Your solicitor will ensure at the earliest stage that you are able and willing to create a Power of Attorney.

5) VALIDITY : Section 18 of AWISA provides that a Power of Attorney not validly created will have no effect when the Granter lacks capacity. A solicitor will use their legal expertise and experience to ensure that your Power of Attorney is validly created.

6) PEACE OF MIND : Simply put, engaging a solicitor can take the stress away. Your involvement in the process is reduced to a one-one meeting with your solicitor to discuss your circumstances, receive advice and give instructions. Following this, you need meet with a solicitor or doctor just one more time to sign the Power of Attorney paperwork prepared for you. Your solicitor will take care of everything, including the process of having the Power of Attorney registered.

If you would like to discuss creating a Power of Attorney, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail:

If you would like to learn more about Power of Attorney, please visit the website of the Office of the Public Guardian Scotland:

Worker Dies After Sustaining Burn Injuries

A worker has died after sustaining serious burn injuries. The man worked at the chipboard Norbord factory in Stirlingshire and received fatal burn injuries in an accident in the factory.
Police Scotland and the Health and Safety Executive, the body responsible for promoting workplace safety, have announced that they will conduct a joint investigation into the cause of this tragic accident.
A spokesperson for Police Scotland has said, “Police in Stirling were called to an industrial site off Station Road in Cowie at 5.40pm on Wednesday, July 13 after a man sustained severe burns as a result of a work-related incident.
“The 64-year-old was transferred by ambulance to hospital, where he has since passed away.”
Norbord have expressed their sadness over this horrific accident and have said, “We express our profound sympathy to the family at this very difficult time.
“We are co-operating fully with Police Scotland and the HSE on their joint investigation to ascertain the cause of the accident.”

Accident at Work

Thankfully, such tragic accidents are rare and health and safety legislation has helped to minimise the risks posed to workers.
However, no matter how many safety precautions are taken accidents in the workplace can still occur. If you have been injured at work, you may be able to make a personal injury claim against your employers. Employers must provide a safe work place for their employees and may be liable for any injuries that are a result of their failure to provide a safe working environment.

What Accidents Can Be Claimed For?

The most common accidents at work include falls, manual handling accidents, burns, Repetitive Strain Injuries and more. No matter what kind of injury you suffer, if your injury was a result of your employer’s negligence, you may be able to make a claim against them.

McCarthy Law Personal Injury

McCarthy Law is headed up by Kathleen McCarthy. Going through an accident at work can be a traumatic and painful time, not only for the person involved, but also for their loved ones. Contact us today to find out how we could help you.

Fatal Workplace Accident on Queensferry Crossing

A construction worker has been killed in a workplace accident on the construction site of the new Queensferry Crossing bridge being built across the Firth of Forth.

A 60-year-old construction worker was killed hit by the moving boom on a Giraffe crane while working on the deck of the north tower. As a result of the injuries, he suffered severe blood loss and was unable to be resuscitated. Another worker was left with serious injuries as a consequence of the accident.

Work on the construction of the new crossing has ceased as an investigation into the incident is carried out. The bridge is to replace the Forth road bridge by the end of the year. The incident marks the first fatality at the site since construction began in 2011.

A Forth Replacement Crossing spokesman said: “We are deeply saddened to have to confirm there was an incident just before noon on 28 April on the Queensferry Crossing north tower in which a person has lost his life.

“One other person has been taken to the hospital. All activity has been stopped at the north tower.

“Our thoughts are with the family and friends of our colleague and co-worker at this time.”

A Police Scotland spokesman said: “We are currently working alongside our partner agencies to investigate an incident on the Queensferry Crossing Bridge that resulted in a man sustaining fatal injuries.

“The call was received around 12.20 on Thursday and sadly, the man was pronounced dead a short time later.

“Another man on the bridge also sustained minor injuries.

“Inquiries to establish the full circumstances surrounding this matter are ongoing.”

Workplace Accidents: Construction Sites

Construction workers are one of the most at-risk workers in the UK with the industry being one of the most dangerous sectors of employment in the UK. The nature of the industry with heavy machinery in operation, extreme weather, hazardous chemicals and other aspects such as working at extreme heights, have all been major factors in the number of fatalities and serious accidents in the industry and in workplaces in general.

A recent report showed that the number of health and safety inspections at construction sites have fallen significantly resulting in many concerns about the future safety and well-being of workers. A report from the Health and Safety Executive found that a number of accidents in the construction industry could be solved with better management and better planning. Due to this, many workplace accidents on construction sites, and in general, are caused by poor management, recklessness and a failure in duty of care.

Making a Personal Injury Claim: Contact Us

If you have been injured through no fault of your own as a result of the recklessness or carelessness of your employer, you could be entitled to make a personal injury claim. If your workplace accident was through no fault of your own, you could be entitled to make a personal injury claim. Supporting your claim is one of the most vital things you can do and our team of solicitors will work with you, using any relevant evidence, to get you the compensation and justice you deserve.

To find out how we can help you get the justice you deserve, contact our team of personal injury solicitors today using our online contact form.

Cyclists “Pedal on Parliament” to Raise Awareness of Cycling Safety

Thousands of cyclists have taken part in a campaign in Edinburgh called Pedal on Parliament in an attempt to encourage the Scottish Government to invest in cycling in Scotland, including more cycle lanes and safe spaces for active travellers.

Other campaigns occurred in Scottish cities such as Aberdeen as cyclists called for improved investment in active travelling. The campaign, now in its fifth year has claimed that it has made a difference in putting active transport on the political agenda, with several MSPs and MPs cycling in the event this year. One of the primary aims was to encourage 10% of the transport budget to be spent improving conditions for cyclists.

Improving Safety for all Cyclists

While the campaign aims to increase the number of cyclists and encourage a healthy lifestyle, a major factor of the campaign is to raise awareness for improved safety for vulnerable road users.

Mies Knottenbelt, of Lothians cycle campaign group Spokes, said: “Many different kinds of cyclists come together to make it known that cyclists need some space on the roads to be able to cycle safely.

“There are lots of kids here and lots of parents who feel strongly that unless we make the roads a bit safer, we can’t cycle.”

Although there have been many campaigns to improve road safety and raise awareness of vulnerable road users, thousands of people are injured in road traffic accidents each year. Due to the vulnerable nature of cyclists on roads, if a cyclist is involved in an accident they are likely to be severely injured. This is because unlike car owners or those in vehicles, cyclists are largely unprotected. Being stuck by a vehicle, or poor road conditions can lead to dismounting, which can often be the primary cause of the injury. Thankfully, however, if you are injured in a cycling accident through no fault of your own, or if you are hit by a vehicle, the law can help you get the justice and the compensation you deserve.

Cycling Accidents: Making a Personal Injury Claim

Making a claim following an accident can be complicated, especially if no one admits liability for the accident, however, if you have been injured through no fault of your own, at McCarthy Law we believe that you have the right to compensation. To hold those responsible to account, it is important to have as much evidence to support your claim and build the strongest possible case. To make a personal injury claim our team will need to know the basic details of your injuries and your accident, such as where, when and how it occurred. Evidence such as a medical report, witness statements, CCTV footage and photographs can be used to support your claim.

It is difficult to estimate exactly what your claim could be worth as, when making a personal injury claim, it is possible to claim for other factors that just the extent of your injuries. You could claim for compensation if your accident left you unable to work, any psychological damage that was caused due to your injury and even damage to property.

Claim Compensation by Contacting us Today

Many people do not know where to begin when making a personal injury claim, At McCarthy Law, we aim to make the process as straightforward and stress-free as possible. If you have been injured through no fault of your own in a road traffic accident and wish to make a personal injury claim, contact our team of expert solicitors today using our online contact form.

Construction Site Inspections Drop by over 50% in Scotland

Safety inspections at construction sites in Scotland fell by more than 50% in the last year with budget cuts and constraints being one of the major reasons cited by a new report following a Freedom of Information request.

UCATT, the organisation behind the request, found that in Scotland unannounced inspections to construction sites had fallen by 55% with a further drop of 28% in the North of England. Across the UK, random inspections fell by 8%. The figures come despite an increase in the amount of construction sites in the UK, sparking fear for the safety of employees working in the industry.

In 2012/13 , there were 1,248 proactive inspections carried out by the Health and Safety Executive in Scotland, however, by 2014/15 this figure dropped to 552, more than 55%. There was also a drop in the amount of enforcement action and prohibition notices.

Concerns over Worker Health and Safety: Report Findings

Despite a number of attempts to improve health and safety on construction sites, the industry remains the most dangerous for workers, with 35 fatal accidents in the last year and the most amount of serious accidents in the workplace.

Harry Frew, UCATT Scotland’s regional secretary, said the figures were “shocking” and warned employers may be tempted to “cut corners” as a result of budget cuts.

He added: “These findings are shocking. It is only the prospect of an HSE inspector knocking on the door which means that many construction employers comply with safety laws.

“If that deterrent doesn’t exist then employers are going to be increasingly tempted to cut corners and risk workers’ lives.”

Professor Andrew Watterson, who is part of the Occupational and Environmental Health Research Group at Stirling University, said: “For employees in the construction industry, even the person in the street knows they face major work safety as well occupational ill health dangers. It is therefore deeply disappointing to see the numbers of pro-active inspections of construction sites by HSE in Scotland cut so dramatically between 2011 and 2015.”

He added: “HSE has just launched a new and exceptionally weak GB strategy on health and safety based on a London bubble. Construction workers may well be amazed that HSE is so complacent about inspections and enforcement and seems to rely more and more on some alternative bland and neutered stakeholder approach. HSE increasingly looks and sounds like a toothless tiger – a lot of noise and increasingly little action”.

Construction Accidents: Making a Personal Injury Claim

Due to the dangerous nature of working in the construction industry, with many workers operating heavy machinery, working at height or being exposed to dangerous substances, workplace accidents are exceptionally common.

Many construction injuries are a result of poor health and safety practices within the industry, with a number of workers injured due to poor management, failure in duty of care, or lack of training. Thankfully, if you were seriously injured due to recklessness or negligence on behalf of a manager, you could be entitled to make a compensation claim.

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Our team of expert solicitors will be able to inform you of exactly what you may need to make a personal injury claim following an accident in the workplace and what you can expect when you begin proceedings. To find out we can help you get the damages you deserve, contact us today using our online contact form.

Grandchildren Benefit from most UK Willls

A recent study has found that when it comes to passing on an inheritance or leaving a legacy, grandchildren are the most likely to benefit.

Data from SunLife found that 70% of grandparents intended to pass on a significant lump sum to their grandchildren, with more than 55% of those questioned stating that they would rather send money to their grandchildren directly than trust their own children to hand the money on. Indeed, many grandparents surveyed said that they would ring fence money for their grandchildren as part of their Will.

The vast majority indicated that they would simply write their grandchild into their Will rather than trusting their child to pass on the money, with many grandchildren enjoying an exceptionally close relationship with their grandchildren. Experts state that grandparents can often establish close relationships as they are often a vital part of childcare for grandchildren. Indeed, 30% of grandparents reported that they enjoyed their relationship with their grandchildren more than with their own children.

The Importance of Drafting a Will

While many people try and leave money to their loved ones, many fail to do so as they do not have a valid or proper Will in place. A Will is a vital document that can allow you to pass on an inheritance to a loved one and ensure that your family and friends are cared for once you are gone.

Ian Atkinson, a spokesman at SunLife, the group behind the research said: “The fact that over two-thirds plan to leave an inheritance directly to their grandchildren shows how much they’re in their thoughts.

“Of course, if you are planning to leave your grandchildren an inheritance, it’s important to have an up-to-date Will — without one, the law will decide what happens to your estate, so your wishes might not be met.”

The Danger of a “DIY Will.”

Despite the importance of such a document, many people opt to try and save money when it comes to creating a Will by using a template that can be bought online or on the High Street. Although such a template is a cheap alternative, it can create significant problems in the long run and prove to be more expensive.

A DIY Will can result in significant legal costs for your loved ones as such a document can fail to properly pass on an inheritance. This is because such a document is often filled out incorrectly and is not always legally binding. A DIY Will can also result in legal challenges, and if filled out incorrectly, such a document can see your inheritance passed on to someone you did not intend.

While creating a Will can secure the future of your family, especially if it is done through using a solicitor, it is also important that you keep a Will up to date. Purchasing new properties, having a child get married or even having grandchildren can affect your Will or lead to some people in your family not being accounted for. Therefore, it is essential that you keep your Will up to date to ensure that it remains relevant to your family circumstances.

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To ensure that the future of your loved one is secured once you are gone, you should create a legally binding Will using the help and support of a solicitor. At Mccarthy Law, we are experts in drafting and reviewing Wills, so if you require legal support regarding any inheritance matter or any family law issue, contact us today using our online contact form.

Major Review of the Scottish Family Law Potentially Required- Justice Committee

A new report from Holyrood’s Justice Committee has warned that a “wholesale” review of Scots Family Law may be required following concerns about the effectiveness of family law in the country.

In an analysis of the Family Law Scotland 2006 Act, the Justice Committee took evidence from many different legal practitioners, representatives from different family law groups and some organisations with an interest in family law.

Focussing on cohabitation, parental rights and parental responsibilities, the committee scrutinised family law in Scotland including a number of concerns and issues that had arisen with the legislation in the past.

Concern over the Current State of Family Law

The committee analysed current legislation and the impact that some laws had on the welfare of children with certain provisions being suggested to improve the law and protection of children. Further concerns mentioned by the committee was the fact that many aspects of Scottish family law were exceptionally outdated with some of the laws being more than 20 years old. There were further calls to review how the law is applied and the tools that could be used to resolve disputes.

Justice committee convener Christine Grahame MSP said: “It appears that the current legislative framework can give rise to adversarial disputes which can make a bad situation worse. Whether that is down to how the law is framed or how it is applied is open to debate.

“Overall though it is clear that the way in which the Scottish legal system handles family law cases involving children raises strong and conflicting views.

“With the main legislation on child law now arguably beginning to show its age, it may be time for a wholesale review, focussed as much on how the law is applied, and the mechanism used to resolve disputes, as on what the law says.

“In particular, we consider that cases would benefit from increased use of mediation and, where possible, being heard by specialist family law sheriffs.”

Speaking on cohabitation, she added: “Stakeholders welcome the new rights for cohabitants enshrined in the 2006 Act. They have helped family law in Scotland adapt to modern times.

“However, we heard concerns that the legislation is insufficiently clear and that lawyers sometimes struggle to tell separating couples what they can actually expect from the provisions.

“More generally, we have heard of confusion from the general public about the state of the law on adult relationships – cohabitation, marriage and civil partnerships, which have changed significantly in recent years. It has been argued that changes have been piecemeal to the extent that the law now lacks coherence and purpose.

“By necessity, this has been a brief examination of the Family Law (Scotland) Act 2006 and it offers a snapshot of stakeholders’ opinions ten years on.

“This short report is, in effect, a report to our successors on the next Justice Committee. It sets out views on aspects of family law covered in the 2006 Act they may wish to consider in more depth in the next session.”

Expert Family Legal Advice: Contact Us

If you require any legal advice or representation regarding any aspect of family law, contact our team of expert solicitors today using our online contact form or call us using our online contact form.

Couples Warned About the Dangers of Social Media when Obtaining a Divorce

A number of divorce experts have warned couples about the danger of using social media, stating that couples who are going through a relationship breakdown should be careful about what is being posted online.

The warning about the dangers of social media comes from Consensus Collaboration Scotland, a network that promotes divorce and separation with minimum conflict. The group urges those who are going through a divorce to take a break from social media with the group warning that posts and activities on social media are becoming increasingly more common for break-ups. Posts on social media can contribute to marriage break-ups, and when going through a divorce, social posts could affect the financial and emotional outcome of the split.

Divorce Proceedings: Danger of Social Media

The warning comes after research showed that social media applications such as Facebook, Twitter, Whatsapp, Snapchat and even Linkedin are resulting in some breakups and promoting distrust in marriages and relationships.

Member of Consensus Collaboration Scotland, Anne-Marie Douglas, said: “We would advise couples going through a divorce or separation to log out of all your profiles and take a break from social media activity while you go through the process.

“We appreciate that this isn’t always possible or practical. If you do continue to use social media websites and online chat apps while you’re getting divorced or separated, we would suggest caution, discretion and good judgement.”

She added: “Remember that everything you do online becomes part of your digital footprint – it’s like a public logbook of your life.

“For example, if you mention on Facebook what you’re going to do with a forthcoming bonus payment, or update your LinkedIn profile to include your great new job or post on Twitter about your expensive holiday plans, have you also disclosed it to your spouse and lawyer? Does what you’re saying to them tie up with what you’re saying online?”

Anne-Marie Douglas also warned that social media can be used as a time stamp which can affect outcomes of relationships and breakups and could be used as evidence against you when negotiating a settlement or any other aspect of divorce. Social media can often be an issue when one party pleads poverty in a divorce or when trying to gain child custody.

The group warned those who are going through a divorce should take a break from social media, even if they update their privacy status on their respected platform. As well as this they urged those to have common sense when tweeting and not say something they would not say again. They also placed attention of the fact that not every social media friend is a friend and that they can pass information to your former partner.

Obtaining a Divorce: Contact Us

If you require advice regarding obtaining a divorce or any other matter of family law, contact our team of expert solicitors today using our online contact form or call our team today.