Overview
The Children (Scotland) Act 1995 governs the parent/child relationship in Scotland and provides specific Parental Responsibilities and Rights (PRRs) to underpin the relationship. Ultimately, the rights exist to allow parents to fulfil their responsibilities. Moreover, the legislation goes further to say that in reaching any major decision, the person(s) exercising PRRs should take the child’s views into account, if the child wishes to express a view. It goes without saying that their age and maturity must be borne in mind when considering their wishes to ensure that any major decision is always made with their best interests at heart.
The ‘Responsibilities’ can be found at section one of the 1995 Act and consist of the following: -
- To safeguard and promote the child’s health, development and welfare;
- To provide direction and guidance to the child (in a manner appropriate to the stage of development of the child);
- To maintain personal relations and have direct contact with the child on a regular basis (if not living with said child); and
- To act as the child’s legal representative.
The ‘Rights’ follow the ‘Responsibilities’ and are contained in section two of the 1995 Act. These are: -
- To have the child living with you, or otherwise to regulate the child’s residence and decide where they live;
- To control, direct, or guide the child’s upbringing (in an age-appropriate manner);
- When the child is not resident with you, maintain personal relations and direct, regular contact with the child (again, if not living with the child); and
- To act as the child’s legal representative.
Who holds PRRs?
In Scotland, the birth mother automatically has PRRs in respect of the child, regardless of the method of conception (i.e. assisted). The child’s birth father will automatically have PRRs if either: -
- He was married to or was a civil partner of the birth mother when the child was conceived or at a later date; or
- He is named as the father on the child’s birth certificate.
Alternatively, PRRs can be obtained by the birth father by either a written agreement with the birth mother (known as a Parental Responsibilities and Rights Agreement) or by application to the Court.
With assisted conception, the birth mother’s husband or civil partner will automatically acquire PRRs unless it can be established that they did not consent to the treatment. If the second parent in assisted conception is female but not a civil partner of the birth mother, then she can acquire PRRs as follows: -
- by being registered as the second parent of the child; or
- by being granted PRRs by the birth mother through a Parental Responsibilities and Rights Agreement; or
- by applying to Court for an order granting PRRs.
If you are adopting a child then the Court will grant PRRs to you as part of the adoption process. The Court can also grant an order for PRRs to other relevant and appropriate people, such as other family members or to the local authority (if the natural parents are not able to look after a child or if they are deceased).
What happens if the holders of PRRs have a dispute?
Ultimately, in a situation whereby the holders of PRRs disagree regarding a major decision in relation to the child Court intervention may be required. This is a last resort, and it is always advisable to try other avenues (for example, family counselling and mediation) to reach an agreement to avoid placing such an important and personal decision in the hands of a third party (i.e. the Court).
If you find yourself in such a situation, then it is best to reach out to a family law solicitor who can provide you with advice and who will do their best to negotiate to help parties reach a decision that is in the best interests of the child.
