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Family Lawyer Jenny helps examine petition to change parental rights law

Schoolgirl Heather Nicol is petitioning for a change to the law relating to parental rights.  She argues that a child should be able to refuse to see a parent where that parent has been convicted of domestic abuse.

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Heather and Kezia Dugdale MSP appeared on the Kaye Adams Radio Programme (hosted by Stephen Jardine in Kaye's absence) on BBC Radio Scotland on 2nd July. Jenny Smith from our family team also appeared, to give a legal perspective and detail on the current legislation. Listen to the full segment here.

The current legal framework governing issues relating to children is the Children (Scotland) Act 1995.   The Scottish Government has issued a wide-ranging consultation paper on part 1 of this Act, with a view to making changes to the legislation to bring it up to date with modern society.  You can find out more in Nadine Martin's HM Insight here - Is it time for change for Child Law in Scotland? 

A section of the paper asks for views on parental rights and responsibilities (PRRs). Parental responsibilities include safeguarding and promoting a child's health, development and welfare, providing guidance and direction and if the child is not living with the parent, to maintain personal relations and direct contact on a regular basis.  The rights correspond to the responsibilities and are designed to enable parents to fulfil their parental responsibilities. 

The consultation paper seeks views on removal of parental rights and responsibilities following offence.  The consultation asks whether it should be possible to apply to the criminal court following conviction to have that person's PRRs removed or whether the criminal court should automatically consider removal in certain cases.  Our existing legislation does contain provision for an application to be made to the civil court for the removal of parental rights and responsibilities.  However, if the applicant is not eligible for legal aid, court tends to be expensive particularly where the other parent opposes the application.  In saying that, removal of PRRs is such a draconian step that on one view it is right that it should not be an easy one.

The existing legislation does contain provision for abuse to be taken into account by the court in its decision making in relation to children.  There is, however, also a presumption that it is generally better for a child to have contact with a parent than not.

The consultation paper also seeks views on the issue of a child being influenced by one parent against the other (often known as "parental alienation"). So, there is a recognition that in some cases the parent with care is actively trying to marginalise the role of the other parent in the child's life.  The court requires to carry out a delicate balancing up exercise of the various arguments being put forward by each parent and to have as its paramount consideration the child's welfare.

Heather Nicol gives the example of a child wanting to go on holiday abroad with a parent but only being able to do that if the other parent consents.  Sometimes, there can be valid child welfare based reasons for refusal.  Heather's point is that difficulties arise where the other parent cannot be located or withholds consent unreasonably.  Under the current legislation the court can make orders for specific things in relation to children, and one such example would be to enable a child to go on holiday abroad with a parent.  Again, though, this can be expensive and it does take time, meaning the parent has to weigh up the cost of the holiday as against the cost of court as well as making sure plans are made well in advance to give enough time to apply to court if necessary.

The current legislation does recognise that in making an order relating to a child, that child should be given the opportunity to express views and then for the court to have regard to those views, taking into account the child's age and maturity.  A child aged 12 or over is deemed mature enough to give a view, but younger children's views are taken too.  It really depends on the child's stage of development.  It is fair to say that if a 14 year old says s/he does not want to see his/her dad, the court is unlikely to make an order insisting that s/he does so.  However, the legislation does not go so far as to include a blanket provision that if a child says s/he does not want to see a parent then the court should make an order reflecting that.  If the proper protections were put in place to ensure a child's view was being given freely and without coercion then this could be a way of helping children in this situation.

The consultation paper closes on 7th August 2018 which our Family team will submit a response to.  We then expect fresh legislation.  Here at Harper MacLeod we will continue to monitor and issue updates.