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Last update: 06-08-2007
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Parental responsibility - Scotland

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TABLE OF CONTENTS

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility? 1.
2. As a general rule, who has the parental responsibility over a child? 2.
3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place? 3.
4. If the parents divorce or split up, how is the question of parental responsibility determined for the future? 4.
5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding? 5.
6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court? 6.
7. If the parents go to court, what issues can the judge decide upon relating to the child? 7.
8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?v 8.
9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice? 9.
10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application? 10.
11. Which procedure applies in these cases? Is an emergency procedure available? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision on parental responsibility? 13.
14. In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies? 14.
15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in Scotland? 15.
16. To which court should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases? 16.
17. Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in Scotland or are of different nationality? 17.

 

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

In Scotland, the term “parental rights and responsibilities” (PRRs) describes the rights that a parent (or other person) has in relation to a child, and the obligations that the person has to that child.

Anyone holding parental responsibilities should exercise them in the best interests of the child, in so far as it is practicable for them to do so. The responsibilities comprise:

  • safeguarding and promoting a child's health, development and welfare
  • providing direction and guidance that is appropriate to the child's development
  • maintaining personal relations and direct contact with the child on a regular basis, if the holder does not live with the child
  • acting as the child's legal representative.

A person who has parental rights in relation to a child will generally have the right to:

  • have the child living with him or her, or to otherwise regulate the child's residence
  • control, direct, or guide the child's upbringing, in a way that is appropriate to the child's stage of development
  • maintain personal relations and direct contact with the child on a regular basis, if the child is not resident with the person
  • act as the child's legal representative.

2. As a general rule, who has the parental responsibility over a child?

The mother of a child has PRRs automatically. The father of a child will gain automatic PRRs only if married to the mother of the child at the time of conception or subsequently. Fathers who do not have PRRs can gain them by marrying the mother, by signing and registering a Parental Responsibilities and Parental Rights agreement (see 5 below) or by applying to the court. Anyone with an interest in a child can apply to the court for PRRs.

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3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

Yes - if a parent or parents are unable to exercise parental responsibility over their children, the court can appoint someone else in their place. In general, parents should exercise their PRRs in the best interests of the child, in some cases until the child is 18. However, where a parent is unwilling to exercise parental responsibilities, anyone with an interest can apply to the court to have that parent's PRRs removed.

The Children (Scotland) Act 1995 makes it clear that parental responsibilities should be exercised only so far as is practical. If for instance the non-resident parent is abroad, the contact that that parent can have with his or her children is limited compared to a parent who lives close to the child.

4. If the parents divorce or split up, how is the question of parental responsibility determined for the future?

Fathers who were married to the mother retain the PRRs that they had during the marriage, unless the court orders otherwise. Parents may agree privately between them issues such as with whom the child will live, and when. If they are unable to reach agreement, either parent may apply to the court for an order regulating matters. The court will generally make such an order under the Children (Scotland) Act 1995.

5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

The mother and father of a child can sign an agreement under Section 4(1) of the Children (Scotland) Act 1995 to give the father parental rights and responsibilities. The court must never have deprived the mother of any of her PRRs. Witnesses must sign the agreement, which takes effect when registered in the Books of Council and Session. The Registers of Scotland charge a small fee for this.

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The agreement must be in the form prescribed by Scottish Ministers. Copies of an agreement with an accompanying help sheet are available on the Scottish Executive website.

6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

Family mediation is available to couples who divorce or separate, and can help them come to agreed solutions to problems over access to the children etc. Family Mediation Scotland is a voluntary organisation supported by grants from the Scottish Executive. It provides mediation through a network of local services. The service can be free or available for a voluntary donation. Comprehensive Accredited Lawyer Mediators also offer family mediation, and the costs involved in this service can be offset against legal aid.

7. If the parents go to court, what issues can the judge decide upon relating to the child?

A court in Scotland can generally make orders about:

  • parental responsibilities
  • parental rights
  • compulsory supervision measures - any measure which the court feels is necessary to safeguard and promote a child's welfare
  • child protection orders - in emergencies, to protect a child from significant harm
  • guardianship
  • adoption
  • the administration of a child's property.

8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?v

Everyone with PRRs in relation to a child should be involved in decisions about that child. Where only one parent has PRRs, that parent does not need to consult the other parent.

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9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

If both parents have full PRRs in relation to a child, both parents have the right to have the child living with him or her, or to otherwise regulate the child's residence.

The general principle is that where possible, both parents should contribute to the upbringing of their children, where this is practicable and in the interests of the child. If parents cannot agree, the court can determine with whom a child resides, and when. It is possible for the court to make residence orders for both parents, setting out times when the child will reside with each parent, or a residence order for one and a contact order for the other.

10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

  1. An action concerning parental responsibilities can be raised in either the Court of Session or in the Sheriff Court. The application can be made within an ordinary action for divorce or separation.

  2. Which court to use is a matter of personal choice. Where no such action for divorce or separation is pending, the Court of Session has jurisdiction to deal with an application for a parental responsibilities order where the child is habitually resident in Scotland and the Sheriff Court has jurisdiction to entertain such an action where the child is habitually resident within the Sheriffdom in which the Court is geographically situated. The Scottish Courts Service website contains a map showing court locations and lists addresses and contact details.

  3. An application concerning parental responsibilities and rights requires to be made in the form of a Summons in the Court of Session and by Initial Writ in the Sheriff Court. As in the case of divorce actions each Court has its own set of rules which set out the form such application should take. See paragraph 11(6) of the page on divorce.

    Formalities and documentation

  4. Again, a fee will be payable in either Court on the lodging of such an application. See paragraph 11(8) of the page on divorce concerning possible fees exemptions.

  5. With any of these types of application you will require to present an extract entry of the child's birth. A photocopy will not be accepted by the court nor will an abbreviated form of certificate.

11. Which procedure applies in these cases? Is an emergency procedure available?

There is no simplified procedure available in applications of this type. The rules referred to in paragraph 11(6) of the page on divorce set out the procedures. However, it is possible to seek an interim order where this is thought to be necessary.

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12. Can I obtain legal aid to cover the costs of the procedure?

Advice and Assistance is available on parental responsibilities matters subject to the normal statutory financial tests. Civil Legal Aid is also available on parental responsibilities matters, with the exception of some proceedings under Part II of the Children (Scotland) Act 1995, subject to the three normal statutory tests of financial eligibility, reasonableness and probable cause.

13. Is it possible to appeal against a decision on parental responsibility?

A parental responsibilities order made in a Sheriff Court may be appealed against within 14 days from the date of the order. Such an order made in the Court of Session may be reclaimed (appealed) within 21 days of the date of the order.

14. In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

If the application is to a Scottish court to have a decision made in Scotland enforced (in Scotland) then the extract of that decision is the authority necessary for enforcement. Enforcement can be carried out by Sheriff Officers or Messengers at Arms. Given the possible sensitive nature of the case, it may be decided not to enforce using these officers. Alternatively, it may be possible to bring proceedings in the same action for failure to comply with a court order. If there is a failure to comply, contempt of court proceedings could be taken.

15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in Scotland?

If the decision on parental responsibility falls within the scope of the 'Brussels II' Regulation i.e. Council Regulation (EC) No 1347/2000 of 29 May 2000 then Article 14 of this regulation sets out the basis for recognition.

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  1. A judgment given in a Member State shall generally be recognised in the other Member States without any special procedure being required. However, there are various grounds of non-recognition contained in article 15.
  2. In particular, and without prejudice to paragraph 3, no special procedure shall be required for updating the civil status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State.
  3. Any interested party may, in accordance with the procedures for enforcement of a judgement (see below) apply for a decision that the judgment be or not be recognised.
  4. Where the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue.

If enforcement is sought, then the judgement once served may be registered for enforcement in the Court of Session.

If the order does not come within 'Brussels II' then the relevant law is to be found in the Child Abduction and Custody Act 1985 Part II, in particular Section 15. This section essentially gives effect to the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children. A decision made in a contracting state shall be recognised in each part of the United Kingdom as if made by a court having jurisdiction to make it in that part. If enforcement is required, then the decision must be registered in the Court of Session.

16. To which court should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

If the decision comes within the scope of the 'Brussels II' Regulation ie Council Regulation (EC) No 1347/2000 of 29 May 2000 then see the answer to question 15 above.

If the decision does not come within the scope of "Brussels II" then the Child Abduction and Custody Act 1985 Part II applies. In particular, section 15. This gives effect to the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children. Under this, any person appearing to have an interest in the matter may seek a declarator on any of the grounds specified in articles 9 or 10 of the Convention that the decision is not to be recognised in any part of the United Kingdom. The appropriate court is the Court of Session.

17. Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in Scotland or are of different nationality?

If the court in Scotland has jurisdiction, it will generally apply Scots Law. If it is thought that a particular question is governed by a relevant foreign law which is different from our law, that law must be averred and proved. There may be unusual circumstances where foreign law is pleaded by the parties in a case in which circumstances the Scottish court may take this into consideration.

Further information

More information on legal aid in Scotland is available:

More information on Family Law is on the Scottish Executive's website.

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Last update: 06-08-2007

 
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