Thinking about parental rights and responsibilities

  • Insight

05 February 2018

We are often asked about parental rights and responsibilities, how they are acquired or how a parent can establish who has those rights in relation to their child. This might be because there is a major decision to be made concerning a child.

Perhaps the parent is planning to relocate, or is thinking about leaving the UK, or in some cases of family breakdown, the parent is just wanting to go abroad for a short holiday with his or her children. In this article we discuss all the important points to be thinking about.

Firstly, what are parental rights and responsibilities? This needs to be broken down a bit:

Parental responsibilities

Section 1 of the Children (Scotland) Act 1995 sets out that a parent has in relation to their children the responsibility:

(a) to safeguard and promote the child’s health, development and welfare;

(b) to provide in a manner appropriate to the stage of development of the child:

            (i) direction and

            (ii) guidance to the child

(c) if the child is not living with the parent to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child’s legal representative. 

The section makes clear that this responsibility is exercised only so far as practicable and in the interests of the child.

Who is a ‘child’?

For the purposes of Section 1, a child is a person under the age of 16 years except in relation to paragraph (b) (ii) in relation to provision of guidance to the child in which case the child is a person under the age of 18 years. In reality the parental responsibility of giving guidance lasts a lifetime.

These responsibilities are important and set out what a parent should do. Where parents have separated it is important that the non-resident parent still has the opportunity to fulfil their responsibilities as best they can and in the best interests of the child.

These are set out in Section 2 of the 1995 Act and are rights in order to allow the parent to fulfil the parental responsibilities that they have. Parental rights are:

(a) to have the child living with the parent or otherwise to regularise the child’s residence;

(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;

(c) if the child is not living with the parent to maintain personal relations and direct contact with the child on a regular basis;  and

(d) to act as the child’s legal representative.

Where there are two or more parents or individuals with parental rights and responsibilities, each can exercise these rights without the consent or agreement of the others unless there is a court order or agreement saying otherwise. All parties with parental rights and responsibilities have an obligation however to consult with each other in relation to major decisions affecting a child. Sadly court actions are often about parental rights and often in a disputed situation it is easy to lose sight of the need to approach parental rights and responsibilities in the best interests of the child.

How are parental rights and responsibilities acquired?

A child’s mother has parental rights and responsibilities automatically. A child’s father has parental rights and responsibilities if (1) married to the mother at the time of conception or subsequently; (2) is registered as the child’s father on the child’s birth certificate (note: this relates to registration of births in Scotland, in England and in Northern Ireland and not necessarily in relation to a child born abroad). For the unmarried father to be registered on the birth certificate, he must attend personally at the Registrar or he and the mother sign declarations that he is in fact the father. 

A natural father can also acquire parental rights and responsibilities by agreement where the mother, provided she herself has not been deprived of parental rights and responsibilities, can enter into an agreement giving those rights also to the natural father.

The mother cannot give parental rights and responsibilities to any other person no matter how qualified they may be or how close a relationship they have with the child.
 (There are specific rules and separate agreements available for circumstances where a child has a parent by virtue of Section 42 of the Human Fertilisation and Embryology Act 2008.) 

If the mother is not willing to give the natural father parental rights and responsibilities, then the father can make an application to court seeking an order granting to him parental responsibilities and rights. This will generally form part of an action where other matters require resolution, for example contact or residence.

The legislation at Section 5 does additionally provide that a person over the age of 16 years but who has care or control of a child has the responsibility to do what is reasonable in all the circumstances, to safeguard the child’s health, development and welfare even although they do not actually have any parental rights. This includes the ability to give consent to surgical, medical or dental treatment if the child is unable to do so on his own behalf and the person with care of the child does not know that the parent would refuse to give consent.

What happens when the parents do not agree how best to exercise parental responsibilities and rights?

In reaching any major decision which involves the child or the exercise of parental rights or responsibilities, a parent should so far as possible take into account the views of the child concerned having regard obviously to the child’s age and maturity and also to the views of any other person which such parental rights and responsibilities. Where both parents re unable to agree, often court action is the result. (see our blog on “At what age can a child decide?”)

Taking a child out of the UK

It is important that parents are aware that taking a child out of the UK, whether for holidays or for something more permanent requires that the consent of the other parent or other person who has and is exercising a parental right. Where both parents are so-qualified, both parents must give that consent. 

This issue arises regularly at holiday times where parents who have separated make holiday arrangements. In the vast majority of cases, each parent intends to have holiday with their child and agreement is reached and consent given. Where, in some cases, one parent is not permitted, to have the child overnight or to see very much of the child, that parent may feel that the other taking the child abroad on a holiday is not fair and refuses to consent. In such cases a court application may be necessary. This is a matter to be considered in the best interests of the child - what parent really wants to deny their child a holiday? The court can be asked to intervene and determine the issue if agreement cannot be reached and will generally take a dim view of anyone seeking for petty or self-indulgent reasons to deny a holiday, particularly when it is with the parent with whom the child normally lives or with a parent who enjoys good amounts of contact time.

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