The Children (Scotland) Act 1995 significantly changed Scots Law and the obligations on parents and the courts when making decision about children. Before the 1995 Act came into force the focus of the legislation covering this area was principally parents’ rights and there was no mention of their corresponding parental responsibilities. Similarly, the terminology for the orders parents were entitled to seek, such as “custody” and “access”, objectified children and there was no provision for children to give their own views about the orders their parents were seeking and which orders could significantly disrupt their lives. In this article we will consider the undernoted parts of the 1995 Act, with each subject examined for how it impacts the practise of private child law in Scotland. The Act remains the primary legislative framework for children’s rights in Scotland, passed by the Scottish Parliament to provide a national framework for the responsibilities of parents and the powers of the courts.
Jurisdiction
In terms of Section 14(3) of the 1995 Act, any question concerning PRR in relation to a child, shall be determined by the law of the place of the child’s habitual residence at the time when the question arises. Often determining habitual residence is straightforward and if parties cannot agree on a matter concerning their PRR, they can raise an action in their local court, or the Court of Session, and ask the Sheriff or Judge to make an order. However, if a child has recently moved, the matter of determining their habitual residence is sometimes not straightforward and the outcome will depend on a number of factors specific to the particular case.
Definition of PRR
Sections 1 and 2 of the 1995 Act the definition of PRR. These are as follows:
- To safeguard and promote the child’s health, development, and welfare,
- To provide direction and guidance, in a manner appropriate to the stage of development of 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.
- To act as the child’s legal representative.
Each of these represents both a responsibility and a legal duty owed to the child.
Duration of PRR
PRR remain until a child is 16 years of age, other than the responsibility to provide guidance which endures until 18.
Who has PRR?
The mother of a child will automatically have PRR.
A father will have PRR if he is married to the mother at the time of birth or subsequently.
The mother’s female civil partner or spouse will have automatic PRR for a child conceived through assisted reproduction treatment in accordance with the Human Fertilisation and Embryology Act 2008.
It used to be the case that fathers who were not married to the mother could obtain PRR only by way of a formal agreement known as a s4 Agreement with the mother or a court order. However, from the coming into force of the Family Law (Scotland) Act 2006, all fathers named on their child’s birth certificate now have automatic PRR.
In accordance with the Human Fertilisation and Embryology Act 2008, the mother can agree with a second female parent, that she will have PRR of their child conceived through assisted reproduction irrespective of the fact that they are not married or in a civil partnership.
Finally, an individual who has been appointed guardian by a parent in their Will, will automatically acquire PRR on the parent’s death.
Views of children
It is s6 of the 1995 Act which broke new ground in that it provides that anyone with PRR who are making major decisions about children, must a) give the child an opportunity to express the child’s views and b) have regard to these views, taking into account the child’s age and maturity. The only exceptions to this are where the child is not capable of forming a view, or the location of the child is not known.
It should also be noted that, when making such major decisions, parties with parental rights and responsibilities are also obliged to have regard to the views of any other party with parental rights and responsibilities in relation to the child. This is known as the “duty to consult”.
Court orders relating to PRR
s.11 of the 1995 Act sets out the orders that can be made by the court in relation to PRR, and in private family law case the most relevant orders to note are:
An order depriving a person of their PRR;
An order providing a person with PRR;
A residence order;
A contact order;
A specific issue order; (for example to take a child on holiday outside the UK, for the school the child should attend or for medical treatment a child should undergo;
An interdict 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 relating to a child or in the administration of a child’s property.
How Does the Court Decide? The Scottish Government’s Welfare Principle
In considering whether or not to make an order and what order to make, the court is obliged by the welfare principle as set out in s.11(7), namely, to regard the welfare of the child concerned as its paramount consideration and the court cannot make any order unless it considers that it would be better for the child that the order be made than that no order should be made. This is a legal requirement in every case, rooted in the principles that any order must be in the best interests of the child who is the subject of the court action – one size does not fit all.
The court is also obliged to take the views of children who have reached an appropriate age and maturity. In practise, Sheriffs and Judges now generally expect children and young people to be able to give a view from around age 5 but it will, of course, depend on the child in question.
This differs from pre 1995 Scots Law in that the matter of taking a child’s views was entirely discretionary and therefore up to the Sheriff or Judge dealing with the case. Therefore the 1995 Act has truly given children a voice and strengthened children’s rights in proceedings concerning them. Although their views will, of course, not necessarily be determinative of the outcome of the case, they will be an important factor in the court’s decision making process. Whilst many see this as a win for the 1995 Act, it is inescapable that whilst giving children a voice, it also places a heavy weight on the shoulders of children who are often torn by divided loyalties. Clients should therefore only raise an action in court as a last resort and, if appropriate, should consider alternative dispute resolution methods which are noted below.
In 2006, amendments were made to the 1995 Act.
These obliged the court, as part of their decision making process, to have regard to the need to protect children from any abuse or the risk of harm.Further, where the court is considering making an order, and that order would require two or more persons with PRR/parents of the child to co-operate with one another as respects matters affecting the child, the court must also consider whether it would be appropriate to make the order.
This represents significant progress compared to the law which preceded the 1995 Act. In the preceding legislation the court were simply directed “In any proceedings relating to parental rights the court shall regard the welfare of the child involved as the paramount consideration and shall not make any order relating to parental rights unless it is satisfied that to do so will be in the interests of the child”. Accordingly, the 1995 Act provides the court with substantially more direction about the matters that could impact the child’s welfare, and which therefore must be taken into account in the court’s decision regarding what, if any, orders to make.
Morven Douglas is a Partner in the Family Law team at Jones Whyte, accredited by the Law Society of Scotland as a Specialist in Family Law and is trained in Collaborative Law. She has practised exclusively in family law since 2003 and advises on all aspects of child law, including residence, contact and relocation, across Scotland. Morven can be contacted via morven.douglas@joneswhyte.co.uk.
Speak to our family law team
Whether your question concerns parental responsibilities and rights or any matter covered by the Children (Scotland) Act 1995, our family law team is here to help. We offer a full range of family law services, including child protection, residence, contact and relocation and will support you at every stage.
We have offices in Glasgow and Edinburgh and advise clients across Scotland.
To arrange an initial consultation and talk through your situation, call us on 0141 375 1222.
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
