In Scotland, the Children (Scotland) Act 1995 (“the 1995 Act”) determines a person’s parental rights and responsibilities. When a child is born, someone has to have legal duties and responsibilities for the child to enable them to care for and support the child.
Parental responsibilities
Section 1 of the 1995 Act details the list of parental responsibilities. They are:
a. To safeguard and promote the child’s health, development and welfare. This includes looking after the child and making sure that they are getting an education ;
b. To provide, in a manner appropriate to the stage of development of the child
- direction,
- guidance, to the child. This includes making decisions about what is best for the child and choosing what they can and cannot do;
c. If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis. This includes giving the child a chance to have a relationship with the parent by keeping in touch with them and being involved in their life; and
d. To act as the child’s legal representative. This means that they can speak on behalf of the child in any legal matters where the child is not old enough to speak to a solicitor themselves.
The responsibilities only apply in so far as they are practicable and in the interest of the child. The 1995 Act defines as child as being a person under the age of 16 except in respect of the responsibility to provide guidance where a child is a person under the age of 18.
Parental rights
Section 2 of the 1995 goes on to detail the list of parental rights which are necessary to enable a parent to fulfill their responsibilities (as above) They are:
- To have the child living with them 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 not living with them, to maintain personal relations and direct contact with the child on a regular basis; and
- To act as the child’s legal representative.
These all apply to children under the age of 16.
Who has parental rights and responsibilities?
The circumstance of the child’s birth will determine who has parental rights and responsibilities.
For heterosexual couples, the child’s birth mother will automatically have such rights and responsibilities. In contrast, a child’s father will not automatically acquire parental rights and responsibilities. They will only acquire such rights if they are either married to the birth mother at the time of the child’s conception or subsequently thereafter, or if they are registered as the child’s father on the child’s birth certificate after 4 May 2006.
If the father cannot meet either of these requirements, they will not have parental rights and responsibilities. Their only options to acquire such rights and responsibilities are to either enter into a formal agreement with the birth mother granting such rights and responsibilities or by making an application to the Court to impose parental rights and responsibilities upon them.
For same sex couples, it is still the case that the birth mother will automatically have parental rights and responsibilities. Anyone who is in a civil partnership or same sex marriage with the birth mother at the time that they undergo the egg donation, embryo transfer or artificial insemination treatment which produces the child will also acquire the rights and responsibilities. Where the parties are not married, the partner of the mother will need to complete consent forms to acquire parental rights and responsibilities. Fertility clinics should be able to assist in completing the necessary documentation. Where surrogacy is involved, the intended parents will need to apply to the Court for a parental order to acquire parental rights and responsibilities.
Other interested parties, including grandparents or step parents, can also apply to the Court for an order giving them parental rights and responsibilities and the Court’s decision will be based on what is in the best interests of the child.
For further information or to discuss any of the above, contact our experienced legal team: 01721 720131, alternatively email us on This email address is being protected from spambots. You need JavaScript enabled to view it.
