Parental Rights & Responsibilities

This client briefing has been drafted in order to explain what is meant by parental rights and responsibilities (PR&Rs).

Some of the most commonly asked questions, of Macleod & MacCallum’s family law team , relate to mothers’ and fathers’ rights.  Most parents don’t know what PR&Rs are or whether or not they have them. However, when parents separate or divorce they often discover that they or their ex-partner do not have the rights in respect of their children which they thought they had.

Who has parental rights and responsibilities?

Mothers have automatic parental rights and responsibilities in respect of their biological children. However, the Family Law (Scotland) Act 2006 changed the law in this area in respect of father’s rights. If a child’s birth was registered prior to 1 May 2006 a father will only have parental rights and responsibilities in respect of his child if he was married to the child’s mother at the time of registration or married to her thereafter.

A fathers whose child’s birth was registered after 1 May 2006 will have parental rights and responsibilities in respect of his child if he is named as the father on his child’s Birth Certificate.Fathers who do not have parental rights and responsibilities can obtain them in two ways. Firstly they can fill in a parental responsibilities and parental rights agreement (PRPRA), provided the mother is willing to sign the PRPRA, parental rights and responsibilities will be granted. Secondly, a father can apply to the Sheriff Court to ask the Sheriff to grant parental rights and responsibilities.

A member of Macleod & MacCallum’s Court team would be happy to discuss both methods of obtaining parental rights and responsibilities and if suitable can provide you with a parental responsibilities and parental rights agreement.

Who else can obtain parental rights and responsibilities?

On occasion the Court will grant parental rights and responsibilities to an individual other than a parent. For example the Court may grant grandparents, step-parents, aunts or uncles parental rights and responsibilities. It is important to note that the Court will only grant parental rights and responsibilities to such an individual if it is in the child’s best interests to do so.

What are parental responsibilities?

Section 1 of the Children (Scotland) Act 1995 sets out the parental responsibilities that governs parents in their bringing up of children. These are as follows:-

  • The responsibility to safeguard and promote the child’s health, development and welfare;
  • The responsibility to provide the child with direction and guidance;
  • The responsibility to maintain personal relations and direct contact with the child if the parent and the child are not living together;
  • Responsibility to act as the child’s legal representative.

What are parental rights?

 Section 2 of the 1995 Act sets out the parental rights that a parent has in order to allow them to fulfil their responsibilities listed above. These are as follows:-

  • The right to determine where the child is to reside;
  • The right to control, direct, and guide the child;
  • The right to maintain personal relations and direct contact with the child if not living with the child;
  • The right to act as the child’s legal representative.

The general right to “control, direct or guide” allows the individual with parental rights and responsibilities to have a say in how the child is to be disciplined, to have a say in what religious guidance or education the child is to receive, to consent to medical treatment, to access medical information, to access information regarding the child’s education and to make decisions regarding the child’s education. The right also allows a parent to change the child’s name or to prevent the change of the child’s name.

Parental rights end when the child reaches the age of sixteen. Parental responsibilities also end at the age of sixteen, except the responsibility to give the child guidance which lasts until a young person reaches the age of eighteen.

It is important to remember that parental rights and responsibilities may be removed or restricted by the Court. Parental responsibilities can be exercised only where it is in the best interests of the child. The welfare of the child is the paramount consideration and the Court will not make an Order unless to do so will be better than making no Order at all. A child must also be given an opportunity to express his or her views and account will be taken of these views in light of the child’s age and maturity.

For specific family law advice, please contact a member of Macleod & MacCallum’s award winning family law team.

Jenna Thomson

Jenna Thomson
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September 17, 2014