CHAPTER ONE – PARENTAL RESPONSIBILITIES AND RIGHTS AND COURT ORDERS
Parental responsibilities and parental rights
The parental responsibilities owed to children and the parental rights enjoyed over children are set out in Sections 1 and 2 of the Children (Scotland) Act 1985 which are as follows:-
1-(1) Subject to section 3(1)(b) and (d) and 3 of this Act, a parent has, in relation to his child, the responsibility –
- to safeguard and promote the child’s health, development and welfare;
- to provide, in a manner appropriate to the stage of development of the child –
- direction;
- guidance,
to the child;
- if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and
- to act as the child’s legal representative.
2-(1) Subject to section 3(1)(b) and (d) and 3 of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right –
- to have the child living with him or otherwise to regulate the child’s residence;
- to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;
- if the child is living with him, to maintain personal relations and direct contact with the child on a regular basis; and
- to act as the child’s legal representative.
A child’s mother has parental responsibilities and parental rights in relation to a child regardless of whether she is or has been married to the child’s father. However, a child’s father only acquires parental responsibilities and rights if:-
- he is married to the child’s mother at the time of the child’s conception, or subsequently; or
- where not married to the mother at that time or subsequently, the father is registered as the child’s father on the child’s birth certificate.
These provisions are set out in Section 3 of the 1995 Act.
Provided a child’s mother has not been deprived of some or all of the parental responsibilities and rights in relation to a child then the mother, by agreement with the father, can provide that the father will have parental responsibilities and rights in terms of an agreement prescribed in a form by the Secretary of State and registered in the Books of Council and Session. This is set out in terms of Section 4 of the Act.
Court orders relating to parental responsibilities and rights
Section 11 of the Act sets out the orders the court can make in relation to parental responsibilities, parental rights, guardianship or the administration of a child’s property.
The orders a court can make are as follows:-
- an order depriving a person of some or all of his parental responsibilities or parental rights in relation to a child;
- an order imposing upon a person, provided that person is at least sixteen years of age or is a parent of the child, such responsibilities; and giving that person such rights;
- an order regulating the arrangements as to (i) with whom; or (ii) if with different persons alternately or periodically, with whom during what periods a child under the age of sixteen years is to live (known as a “residence order”);
- an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age and a person with whom the child is not, or will not be, living (known as a “contact order”);
- any order regulating any specific question which has arisen, or may arise, in connection with any of the matters mentioned in paragraphs (a) to (d) above (known as a “specific issue order”);
- an interdict prohibiting the taking of any steps of a kind specified in the interdict in the fulfilment of parental responsibilities or the exercise of parental rights relating to a child or in the administration of a child’s property;
- an order appointing a judicial factor to manage a child’s property or remitting the matter to the Accountant of Court to report on suitable arrangements for the future, management of the property; or
- an order appointment or removing a person as a guardian of a child.
The most frequent and common applications that are made to the court are in relation to residence orders, contact orders and specific issue orders.
Residence and contact orders arise where there is a dispute as to with whom the child is to reside and/or the level of contact that the non-resident parent should enjoy with the child.
Specific issue orders regulate any specific question which arises in connection with parental responsibilities and rights in relation to a child. This is very wide but the most frequent contentious issues relate to the relocation of the child either outwith the jurisdiction or relocation as this would significantly impact on the non resident parent’s contact with the child.
Interdicts
The court can make an order prohibiting the taking of any step of a kind specified in the interdict in the fulfilment of parental responsibilities or the exercise of parental rights. In cases involving the relocation of a child, the court are often invited to grant an order for interdict prohibiting the removal of a child from the jurisdiction to permit the court sufficient time to give consideration as to whether a specific issue order permitting relocation is in the interests of the child is to be granted.
Basis for granting any orders relating to children
The legal provisions are set out in Section 11(7) of the Act. In considering whether or not to make any of the orders in terms of Section under Sub-Section 1, the court:-
- shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all; and
- taking account of the child’s age and maturity, shall so far as practicable –
- give him an opportunity to indicate whether he wishes to express his views;
- if he does so wish, give him an opportunity to express them; and
- have regard to such views as he may express.
In making any decision, the court has to take into consideration factors set out in Section 11(7b) which are:-
- the need to protect the child from
- any abuse;
- the risk of abuse
which affects, or might affect, the child
- the effect such abuse, or the risk of such abuse, might have on the child;
- the ability of a person –
- who has carried out abuse which affects or might affect the child; or
- who might carry out such abuse,
to care for, or otherwise meet the needs of, the child; and
- the effect any abuse, or the risk of any abuse, might have on the carrying out of responsibilities in connection with the welfare of the child by the person who has those responsibilities.
In relation to any order the court makes, there are essentially three issues to be considered:-
- The Welfare Principle
In considering whether to make an order with respect to a child, and what order to make, the court must regard the child concerned as its paramount consideration.
- The Minimum Intervention Principle
In considering whether or not to make an order with respect to a child, the court must not make any such order unless it considers that it would be better for the child if the order were made rather than no order be made.
- Views of the Child
In considering whether to make an order with respect to a child and what order to make, the court, taking account of the child’s age and maturity must, so far as practicable, give him or her an opportunity to indicate whether or not he or she wishes to express his or her view. If he or she does so wish to express a view, give him or her an opportunity to express them and have regard to such views as he or he may express.
In affording a child an opportunity to make known his or her views, the test is one of practicability including how a child should be given such an opportunity. This very much depends upon the circumstances of each case including the child’s age and maturity.
There is a presumption set out in Section 11(10) that a child twelve years of age or more is presumed to be of sufficient age and maturity to form a view. However, in practice we have moved significantly beyond Section 11(10) and essentially have moved to a position whereby there is a presumption that a child of five years or more is of sufficient age and maturity to express a view. The Sheriff Court Ordinary Rules, as amended at 23rd September 2023, sets out that a Form F9 in a child action should be sent to a child where the child is five years of age or more, in the absence of a request to dispense with intimation of the Form F9 on the child and following upon the setting out of reasons why it would be inappropriate to send a Form F9 to a child.
In taking the views of a child, the Sheriff’s role is critical. In a family action where a child has returned a Form F9 or otherwise indicated to the court a wish to express a view, then the Sheriff cannot grant any order unless an opportunity has been given for the views of that child to be obtained or heard. The Sheriff must consider whether, and if so, how to seek the child’s views. The recording of the views of the child is set out in Rule 33.20. The role of Child Welfare Reporters in seeking the views of the child and undertaking enquiries to assist the court, are emphasised by the amendments to the Sheriff Court Rules (Rule 33.21). Once the provisions of the Children (Scotland) Act 2020 come into force, then the test of practicability will be removed as a child of any age will be presumed to be capable of forming and providing a view. The weight to be given to a child’s view will still require to take account of the child’s age and maturity.
The procedure in terms of any court applications regarding a child is set out in terms of the Sheriff Court Rules as significantly updated and amended. As from 23rd September 2023, the rules as amended and updated are dealt with in Chapter 5.
Quite often in child disputes the involvement of either new partners, spouses, civil partners becoming involved in the care arrangements and decisions regarding the children are questioned. From a practicable point of view, Section 3(5) of the Act is of assistance in that a parent cannot be with a child all the time and if they arrange for their partner to care for the child, then this is permitted. It allows the partner, at those times, to be essentially in loco parentis to fulfil or exercise the parental responsibilities and rights of the parent.
Each dispute in relation to the care arrangements for a child in relation to residence, contact and relocation are decided on what is in the best interests of the child. Whilst it is very much dependent on the circumstances of the case, there are, perhaps, some common principles which require to be borne in mind:-
- As a starting point, contact with both parents does lead to better academic outcomes, better emotional outcomes, lower levels of anxiety and depression for a child;
- Contact still conveys benefits, even where there is conflict;
- Contact is important in relation to self-identity and genealogical connectedness;
- The key role of the resident parent to make contact work or not work probably exceeds anything else currently recognised; and
- It is also essential that any disputes in relation to the care of a child should be determined without delay as the delay itself may well determine the dispute.