Family law in Scotland: what are parental rights and responsibilities and who has them?

When a child is born, someone has to have legal duties and responsibilities for that child to enable them to care and advocate on behalf of the child. These are called parental responsibilities and parental rights.

In Scotland a person’s parental responsibilities and parental rights are determined by the Children (Scotland) Act 1995 (“the 1995 Act”).

What are parental responsibilities?

Section 1 of the 1995 Act sets out the list of parental responsibilities. They are:

1. To safeguard and promote the child’s health, development and welfare;
2. To provide, in a manner appropriate to the stage of development of the child
   1. direction,
   2. guidance, to the child;
3. If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and
4. To act as the child’s legal representative.

All of the above apply only in so far as it is practicable and in the interests of the child. A child is defined as being a person under 16 years of age for all of the above, except in respect of the responsibility to provide guidance in terms of paragraph (b)(ii), where a child is a person under the age of 18 years old.

What are parental rights?

Section 2 of the 1995 Act sets out the list of parental rights. They exist to enable a parent to fulfil their parental responsibilities (listed above). The parental rights 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.

All of the parental rights apply to children under 16 years of age.

Who has parental responsibilities and parental rights?

Who will have parental responsibilities and parental rights will depend on the circumstances at birth.

The starting point is that the child’s mother who has given birth to the child will automatically have such rights and responsibilities.

The child’s father will not automatically acquire such rights and responsibilities. A child’s father will only have parental rights and responsibilities if they were either:

• Married to the child’s mother at the time of the child’s conception or subsequently; or
• Registered as the child’s father on the child’s birth certificate after 4 May 2006.

If neither of the above criteria is satisfied, the father will not have parental responsibilities or parental rights. A father can still acquire such rights and responsibilities in either of the following ways:

• By entering into a formal agreement with the child’s mother granting such rights and responsibilities. This can only be done if the child’s mother has retained her full parental responsibilities and parental rights; or
• By making an application to court asking the court to impose parental responsibilities and parental rights upon them under s11(2)(b) of the 1995 Act.