Parental responsibilities and rights (PRRs) are intrinsically intertwined in the sense that they cannot be separated and held in isolation. Put simply, the rights exist in order that the responsibilities can be fulfilled.
Parental responsibilities in Scotland relate to guardianship, residence and contact with a child, and also to responsibilities relating to the welfare and upbringing of the child. Specifically, they consist of the following obligations:
- to safeguard and promote the child’s health, development and welfare;
- to provide direction and guidance to the child;
- to maintain personal relations and have direct, regular contact with the child; and
- to act as the child’s legal representative.
Parental responsibilities are brought to an end when the child reaches 16 years of age, however, there is still a duty to provide guidance to the child until they are 18 years old. These responsibilities must also be read alongside other, more specific statutory duties, such as ensuring a child’s education or the duty to aliment a child.
Parental rights are a mirror image of parental responsibilities and relate to the following:
- 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;
- when the child is not resident with you, to maintain personal relations and direct, regular contact with the child; and
- to act as the child’s legal representative.
Once a child has attained the age of 16 years old, any parental rights held in relation to that child are then extinguished. Moreover, there is, generally speaking, a natural development to the nature of these rights as children mature – for example, older children will likely take on decision-making in terms of their own medical treatment at some point prior to reaching the age of 16. Parental rights are extinguished on the death of the person holding PRRs or the child, or in situations where a court order (known as a Permanence Order) removes these rights, based on the welfare of the child.
In terms of PRRs, the relevant legislation specifies that in reaching any major decision, the person(s) holding PRRs should take the child’s views into account, if the child so wishes to express them. The child’s age and level of maturity should be considered, along with the views of anyone else who holds PRRs in respect of the child. The current law in Scotland holds that there is a presumption that a child of twelve years or more is sufficiently mature to form a view.
Who has PRRs?
Under Scots law, PRRs are automatically bestowed upon the birth mother of a child and this also applies where the child’s birth was a result of assisted conception. Of course, it is possible for a court order to remove these PRRs, however, this would only be in exceptional circumstances. In terms of a child’s birth father, he 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 (since 2006)
If neither of these situations applies, a birth father can obtain PRRs through a written agreement with the birth mother, known as a Parental Responsibilities and Parental Rights Agreement (PRPRA).
Alternatively, a court can grant a birth father PRRs.
In relation to assisted conception, the birth mother’s husband or civil partner will automatically have PRRs unless it can be shown that they did not consent to the treatment. If the second parent is female but not a civil partner of the birth mother, she can obtain PRRs in the following situations:
- where she is registered as the second female parent of the child (since 2009); or
- where she is granted PRRs through a PRPRA; or
- where she is granted PRRs by way of a court order.
In addition, adoptive parents will have PRRs upon adopting the child as part of the legal adoption process. The court is also able to grant PRRs to other persons, such as family members, or the local authority, in cases where the natural birth parents are unable to look after the child, or the birth parents have died and there is an appointed guardian for the child.
For advice on PRRs, or any other family law matter, the team at Harper Macleod will be happy to assist you.
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