At Livingstone Brown, we are frequently asked to advise clients on the issue of Parental Rights and Responsibilities (PRR). This is an extremely important area of law. Our team of friendly and approachable family solicitors are skilled in advising clients in respect of their options relating to PRR and assisting them with how to move forward in the best way possible.
The Law in Scotland sets out the things that parents must do for their children (parental responsibilities) and the rights that parents have in relation to their children (parental rights). These rights and responsibilities are set out within Sections 1 and 2 of the Children (Scotland) Act 1995.
Parental responsibilities are defined as the responsibility:
(a)to safeguard and promote the child’s health, development and welfare;
(b)to provide, in a manner appropriate to the stage of development of the child—
to the child;
(c)if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and
(d)to act as the child’s legal representative,
but only in so far as compliance with this section is practicable and in the interests of the child.
Parental rights are defined as the right:
(a)to have the child living with him or otherwise to regulate the child’s residence;
(b)to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;
(c)if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and
(d)to act as the child’s legal representative.
Scottish Law dictates when a parent will have parental rights and responsibilities and who else, other than a parent, can be given them. PRR are automatically conferred on the biological mother of a child. They are automatically conferred on the biological father of a child where he was married to the child’s mother at the time of birth or for children born after 4th May 2006, where the father is named on the child’s birth certificate. If you are an unmarried father of a child born after 4th May 2006 you will not automatically have PRR in relation to that child.
The first way in which a parent can obtain PRR is via a parental rights agreement. Section 4 of Children Scotland Act (1995) provides that the child’s mother and natural father can enter into an agreement conferring on the father parental rights and responsibilities. Section 4A of the Children (Scotland) Act 1995 makes a similar provisions for a second female parent. The mother of the child would have to be willing to do so and would have to hold full parental rights and responsibilities herself in respect of the said child. The agreement requires to be in a prescribed form and be formally registered. This is only open to the natural father of the said child or a second female parent. A parental rights agreement cannot be entered into with anyone else, even if the mother is willing to do so.
If a parental agreement is not possible, then it is open to a parent, or any other person who has an interest in the child, to apply to the local Sheriff Court or Court of Session and seek a court order for parental rights and responsibilities in their favour. Before making such an order, the Court would require to be satisfied that doing so would be in the best interests of the child and that it would be better for the child that the order be made than that no order should be made at all.
Parental rights and responsibilities are usually reserved for parents of the child or for persons who are in fact exercising day to day care of the child, i.e. grandparents with whom the child lives, step-parents, kinship carers. It is not generally necessary for anyone who is not a parent of a child or exercising care of the child, to obtain such orders.
Once someone holds parental rights and responsibilities in respect of a child, these can only be removed by Court order. PRR will only be removed in extreme circumstances. Again, before making such an order, the Court would require to be satisfied that doing so would be in the best interests of the child and that it would be better for the child that the order be made than that none should be made at all.
Please contact our family team who will be happy to discuss further.
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