hen a separated couple reach the end of what may have been a difficult negotiation or a challenging court action, often the greatest relief is the closure that comes from the process being at an end. How far is that decision or agreement really “final”, though?
The ability to revisit agreements and decisions about the care of children is often the greatest cause of anxiety for a person who has been through a separation. In his recent decision in the case of PSC & Ors v NS, Lord Braid considered when an application to vary a decision about children can properly be made.
Lawyers commonly talk about a need for a “material change in circumstances” but that doesn’t appear in any of the relevant legislation about the care of children. In considering what the applicable test is, Lord Braid firstly emphasised that no order regarding a child is truly final while they remain under the age of 16, as the court can consider a child’s welfare (and whether any order needs to be made to safeguard it) until then. He observed that while the idea that litigation should have an end still applies to an extent in cases about children, if there is a genuine and legitimate welfare reason for re-examining arrangements for a child’s care, a court shouldn’t feel barred from doing so purely because existing arrangements have been put in place by a “final” court order before.
This doesn’t mean that anything goes – Lord Braid explained something must have changed which makes reconsidering the position the right thing to do, and usually that something will need to be “material”. However, just because a change is not “material” does not necessarily mean a court would be completely prevented from considering whether it should vary care arrangements that were put in place before.
In this case, the main “change” was the arrangement that had been put in place becoming unworkable – because there was no realistic prospect of the work needed to make it happen actually taking place, together with the mental health presentation of 2 of the 3 children in particular. However, the field of relevant changes isn’t closed. It can include things like a child’s views changing; an event which changes the risk profile of the care arrangements such as acts of abuse; or practical changes such as a child changing school or a parent changing jobs or moving home.
This might cause concern for some. It is true that in some cases the threat of repeated litigation can be weaponised. When they are reaching an agreement, a parent can certainly try to guard against this by looking to set out in their agreement what things will justify a review of the care arrangements, and they can agree to do so at regular intervals too. They can ensure that any decisions, whether made by them as an agreement or by a Sheriff, have their reasoning explained as clearly and comprehensively as possible and that foreseeable issues are fully considered.
However, when approaching negotiations, there also has to be an awareness that what is being discussed is the care of a child now and in the near future. Even the most amicable separated parents do not have the ability to predict everything that their child will encounter; in most cases, the likelihood of any agreement or order not needing some review during a child’s journey to adulthood is slim.
The above article was shared in The Scotsman on Monday 22nd June 2026.
Home > News + events > No order is truly final if a child is under 16
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Jamie Foulis
No order is truly final if a child is under 16
hen a separated couple reach the end of what may have been a difficult negotiation or a challenging court action, often the greatest relief is the closure that comes from the process being at an end. How far is that decision or agreement really “final”, though?
The ability to revisit agreements and decisions about the care of children is often the greatest cause of anxiety for a person who has been through a separation. In his recent decision in the case of PSC & Ors v NS, Lord Braid considered when an application to vary a decision about children can properly be made.
Lawyers commonly talk about a need for a “material change in circumstances” but that doesn’t appear in any of the relevant legislation about the care of children. In considering what the applicable test is, Lord Braid firstly emphasised that no order regarding a child is truly final while they remain under the age of 16, as the court can consider a child’s welfare (and whether any order needs to be made to safeguard it) until then. He observed that while the idea that litigation should have an end still applies to an extent in cases about children, if there is a genuine and legitimate welfare reason for re-examining arrangements for a child’s care, a court shouldn’t feel barred from doing so purely because existing arrangements have been put in place by a “final” court order before.
This doesn’t mean that anything goes – Lord Braid explained something must have changed which makes reconsidering the position the right thing to do, and usually that something will need to be “material”. However, just because a change is not “material” does not necessarily mean a court would be completely prevented from considering whether it should vary care arrangements that were put in place before.
In this case, the main “change” was the arrangement that had been put in place becoming unworkable – because there was no realistic prospect of the work needed to make it happen actually taking place, together with the mental health presentation of 2 of the 3 children in particular. However, the field of relevant changes isn’t closed. It can include things like a child’s views changing; an event which changes the risk profile of the care arrangements such as acts of abuse; or practical changes such as a child changing school or a parent changing jobs or moving home.
This might cause concern for some. It is true that in some cases the threat of repeated litigation can be weaponised. When they are reaching an agreement, a parent can certainly try to guard against this by looking to set out in their agreement what things will justify a review of the care arrangements, and they can agree to do so at regular intervals too. They can ensure that any decisions, whether made by them as an agreement or by a Sheriff, have their reasoning explained as clearly and comprehensively as possible and that foreseeable issues are fully considered.
However, when approaching negotiations, there also has to be an awareness that what is being discussed is the care of a child now and in the near future. Even the most amicable separated parents do not have the ability to predict everything that their child will encounter; in most cases, the likelihood of any agreement or order not needing some review during a child’s journey to adulthood is slim.
The above article was shared in The Scotsman on Monday 22nd June 2026.