When will the courts remove Parental Rights and Responsibilities?

When two parents hold parental rights and responsibilities (PRR) to a  child, in the post-separation context the law encourages them where possible to continue to cooperate in relation to child care matters, to co-parent and aim to reach an agreement on all important matters affecting the child. The courts will only intervene when it is necessary to do so to promote the child’s welfare and making an order is better than no intervention. This was a departure from the previous law that had existed before the 95 Act, regulating child care in terms of contact and residence orders where the approach had been of one party “the custodial parent” being the main carer with full rights, and the other’s role reduced just a part-time parent during “access” periods.

In terms of the relevant legislation, the Family Law (Scotland) Act 1995 s 11(7), before making any decision about parental rights and responsibilities the court must:

1. have regard to the welfare of the child as its paramount consideration;
2. consider whether it would be better for the child that the order be made than none made at all;
3. take account of the view of the child,  and in so doing give the child an opportunity to indicate whether he or she wishes to express their views and if so to give an opportunity to express them

In relevant cases where matters are contentions, cannot be resolved at mediation, and require to be regulated by the court, often it is enough for the court to direct child-care arrangements by awarding residence and contact, without having to make any decisions about the fundamental parental rights held by either parent. It is therefore fairly uncommon for applications before the court to remove or extinguish PRRs to be made, by way of an application to the court for an order under s 11(2)(a) of the Children (Scotland) Act 1995. Whilst such claims are infrequent, at Livingstone Brown we have litigated a significant number of such cases.

Where there has been an abusive or controlling approach to the exercise of PRR by a parent, or where the exercise of PRR is causing a child anxiety or distress, there can be good grounds to remove PRR.  If there has been a particularly abusive relationship between parents,  the court will consider the extent of this impact on the main carer of the continued existence of these rights, as the wellbeing of the main carer has a knock-on effect on the child. However, there are various reported cases which highlight that deprivation of PRRs does not automatically flow from a criminal conviction, even when the conviction is for harmful or neglectful conduct towards a child.  In one case where the parents’ relationship had been volatile, the child had witnessed his father’s aggression and his father had physically harmed a child of a previous relationship, and the parent had no prior PRR,  the court still held that the parent provided a valuable bridge to the child’s mixed cultural heritage and grant a limited right of contact,   although refused to grant any additional PRRs,   Where, however, a mature child expresses a strong aversion to the parent playing any continuing role in their lives, there is a much greater likelihood of the removal of parental rights being the outcome. 

While as indicated, there may be instances where it is proportionate to extinguish some or all PRRs held by a party, the court will conduct a very careful analysis of the facts of the case and the benefit of making the intervention before doing so. Because court is required to adopt a minimum intervention approach it will give careful consideration to each specific right that is sought to be removed, in terms of benefit to child and whether the order is necessary and better than no order.  The court will not treat each child within a family group the same way and is required to look at the whole “mosaic” of facts relating to every child as an individual, carefully weighing up the facts and circumstances to determine what is in that child’s best interests. The child’s best interests will be the court’s, “paramount”  consideration. Given the exacting approach adopted by the court,  the legal and factual basis of an application to the court has to be very carefully presented and well thought-through with consideration given as to which particular parental rights are sought to be removed, backed up by very detailed written pleading to support and justify submissions being made.

As final word of caution, it has to be noted there are some significant risks to be aware of when advising clients who are considering raising claims for removal of PRRs.  It is possible that the service of the action on the Defender to remove PRRs could result in an unexpected counterclaim for contact being made by a parent, even when contact had not previously been operating, and would not have arisen but for the attempt to move PRRs.  In a case of a parent who has lost interest and who is not causing harm by interfering in care,  but is simply not bothering to exercise their PRR, it can also be difficult to demonstrate that the child is affected by this in a negative way or to demonstrate a  sufficient positive welfare benefit to the from the removal of rights to meet the legal test required.

If you are considering bringing or facing an action for PRR it is clearly very important you seek skilled family law advice from an early stage. At Livingstone Brown our team of experienced family lawyers are here to help and guide you every step of the way.