Family Justice Modernisation Strategy

Part 5: Parental responsibilities and rights Background

5.1 The consultation on the review of the 1995 Act sought views on a number of areas in relation to parental responsibilities and rights (PRRs), including:

• recognising joint registration of births overseas;
• clarifying that not all section 11 orders grant PRRs;
• supporting the involvement of non-resident parents in their child’s learning; and
• supporting the involvement of non-resident parents in their child’s health decisions.

5.2 Section 1 of the 1995 Act provides that parents have a responsibility to:

• safeguard and promote the child’s health, development and welfare;
• provide direction and guidance to the child;
• maintain personal relationships and direct contact with the child on a regular basis if a child is not living with their parent; and
• act as the child’s legal representative.

5.3 In order to meet their responsibilities towards their children, section 2 of the 1995 Act provides that parental rights are to:

• have the child living with them or otherwise regulate the child’s residence;
• control, direct or guide the child’s upbringing;
• maintain personal relations and direct contact with the child on a regular basis if a child is not living with their parent; and
• act as the child’s legal representative. Recognising joint registration of births overseas

5.4 All mothers automatically get PRRs for their child. However, not all fathers or second female parents get PRRs. A father gets PRRs if they are married to the mother at the time of the child’s conception or subsequently. If a father is not married to the mother, then he can obtain PRRs by:

• jointly registering the birth with the mother after the 2006 Act came into force on 4 May 2006; or
• completing and registering a Parental Responsibilities and Rights Agreement^[24] with the mother; or
• obtaining a court order.

5.5 The provision in the 2006 Act covers joint birth registration in Scotland, England and Wales and Northern Ireland but not overseas.

5.6 In relation to same sex parents, the child’s mother receives PRRs as does any second female parent if she:

• was married or in a civil partnership with the mother at the time of the insemination/fertility treatment; or
• is named as the other parent on the child’s birth certificate; or
• completes and registers a Parental Responsibilities and Rights Agreement with the mother; or
• obtains a court order.

Clarifying that not all section 11 orders grant PRRs

5.7 The Court of Session and sheriff court may make a variety of orders under section 11(1) of the 1995 Act including orders to grant a person PRRs; deprive a person of some or all of their PRRs; regulate residence arrangements; regulate contact arrangements; or regulate any specific question that has arisen.

5.8 The Scottish Government is aware that there may be confusion as to whether certain section 11 orders (such as, for example, contact orders) automatically grant PRRs to individuals. While some section 11 orders may grant PRRs, this is not the position with all section 11 orders. An order granting contact does not automatically confer PRRs.

Supporting the involvement of non-resident parents in education decisions

5.9 The Scottish Schools (Parental Involvement) Act 2006^[25] (the Schools Act) established a framework for parental involvement in state schools. There is also accompanying statutory guidance^[26] which states that:

“Everyone who is a parent, as defined in terms of the 1980 Act, has rights under the Act. This includes the right to receive advice and information about their child’s education, general information about the school, to be told about meetings involving their child, and to participate in activities, such as taking part in decisions relating to a Parent Council. Education authorities and schools should treat parents equally, the exception to this general requirement being where there is a court order limiting an individual’s exercise of parental rights and responsibilities.

It is for education authorities to advise schools on the application of these rights in individual cases.”

5.10 The Schools Act applies the definition of “parent” that is set out in the Education (Scotland) Act 1980^[27] which includes “guardian and any person who is liable to maintain or has parental responsibilities (within the meaning of section 1(3) of the 1995 Act) in relation to, or has care of a child or young person”.

5.11 This definition includes non-resident parents who have PRRs and also people who have no PRRs but fall within one of the other aspects of the definition such as “care of a child or young person”.

5.12 Non-resident parents have the same rights as resident parents to access their child’s educational record. Regulation 5(2) of the Pupils’ Educational Records (Scotland) Regulations 2003^[28] provides that upon the request by a parent for disclosure of their child’s education records, the school must do so. These regulations cover all schools in Scotland. The regulations provide for exceptions for sensitive personal data or if the school believes that the disclosure of the educational records would likely cause significant distress or harm to the pupil or any other person.

5.13 The Scottish Government have heard concerns that the way local authorities capture pupil and parent information at the school enrolment stage could exclude non-resident parents from involvement in their child’s school life. Each local authority has a different pupil enrolment form and some local authorities do not request details of the non-resident parent.

5.14 In addition the Scottish Government understands that the annual update form may be only sent to one parent. This parent would then have responsibility for deciding whether to enter the contact details of the other parent if they no longer live together.

5.15 Some of the issues which have created electronic barriers to the smooth communication with both parents have been explored with the SEEMiS Group, the Education Management Information System provider for local authority education services across Scotland. The SEEMiS Group has taken steps to improve their systems and make it easier for schools to electronically capture and automatically send information to multiple contacts registered.

Involvement of non-resident parents in their child’s health decisions

5.16 The British Medical Association has produced guidance on confidentiality and the disclosure of health records.^[29] This explains that children who are aged 12 or over are generally expected to have capacity to give or withhold their consent to the release of information.

5.17 If the child has the capacity to give or withhold consent to a treatment or to the release of information from their health records, health professionals should respect their wishes. In order to fulfil their parental responsibilities anyone with PRRs has the right to ask for and to access their child’s records. However, a child with capacity can refuse access. Access can also be refused when it is not in the child’s best interests.

5.18 The Scottish Government is aware of concerns on how best to ensure that non-resident parents are kept informed by health boards and GP surgeries.

5.19 The General Medical Council has produce guidance for all doctors in the UK on working with young people under the age of 18.^[30] Paragraph 54 of the guidance specifies that a doctor should let parents access their child’s medical records if the child consents or lacks capacity and it does not go against the child’s best interests. If the record contains information given by the child or young person in confidence then this should not normally be disclosed without their consent.

5.20 The guidance goes on to state that divorce or separation does not affect parental responsibility and that both parents should be allowed reasonable access to their child’s health records.

Aim

Recognising joint registration of births overseas

5.21 The Scottish Government believes that it is in the best interests of children for unmarried fathers and second female parents who have obtained overseas parental duties, rights and responsibilities through a process comparable to how unmarried fathers and second female parents can obtain PRRs in Scotland to have PRRs in Scotland.

Clarifying that not all section 11 orders grant PRRs

5.22 The Scottish Government considers that to ensure the best interests of the child are at the centre of the case the law should be clarified to make clear that a court can make an order under section 11(1) for contact (for example) in cases where it may not be possible to award PRRs or where the court does not consider it is in the child’s best interests for the person being granted contact to be granted PRRs.

Involvement of non-resident parents in education decisions

5.23 The Scottish Government wants to ensure that non-resident parents are involved in education decisions and are provided with appropriate information to engage with their children’s learning and progress through school.

5.24 The Scottish Government accepts that there may be cases where it is not in the best interests of the child for schools to share information with non-resident parents. An example might be where domestic abuse has occurred.

Involvement of non-resident parents in their child’s health decisions

5.25 The Scottish Government wants to ensure that non-resident parents are kept informed by health boards and GP surgeries of decisions as long as a child with capacity consents and it is in the child’s best interests.

Actions

Recognising joint registration of births overseas

5.26 Section 19 of the Children (Scotland) Bill gives the Scottish Ministers the power to make regulations in relation to the conferral of PRRs on unmarried fathers or second female parents where the child’s birth is registered overseas and the parent has obtained overseas parental duties, rights or responsibilities in a similar way to obtaining PRRs in Scotland, and to which the mother consented. The regulations will list jurisdictions and processes which the Scottish Ministers consider have similar ways of obtaining PRRs as in Scotland.

Clarification of the law regarding PRRs

5.27 section 11 of the Bill aims to clarify that a person under the age of 16 can seek and obtain a contact order under section 11 of the 1995 Act despite the fact that, under section 11(2)(b) of the 1995 Act, a person under 16 cannot obtain an order granting them PRRs (unless the person is a parent of the child). The Bill also aims to clarify that a person over the age of 16 may seek and obtain a contact order without also obtaining PRRs.

Involvement of non-resident parents in education decisions

5.28 The Scottish Government is currently revising the statutory guidance that accompanies the Schools Act. Consultation on draft revised guidance which will address the involvement of non-resident parents will take place during the 2019/20 academic year.

5.29 The work to revise the statutory guidance is an action within the Learning Together national action plan^[31] which the Scottish Government published on 21 August 2018. This is a three year plan that sets out a vision for parental involvement, engagement, family learning and learning at home. It is a joint plan between the Scottish Government and COSLA and it has benefited from detailed input from Scotland’s National Parent Forum. This forms part of the wider National Improvement Framework Improvement Plan.^[32]

5.30 The Scottish Government has set up a working group to discuss the statutory guidance and training and support materials. Meetings of the group were held in November 2018, January 2019 and April 2019, with a further meeting scheduled for September 2019. It is anticipated that the group will continue to meet during the consultation on the statutory guidance.

5.31 The Scottish Government is in contact with the Association of Directors of Education in Scotland to find ways of bringing the concerns regarding the pupil enrolment form to the attention to all local authorities. The Scottish Government will consider ways to promote the good practice that exists in many areas and removing unnecessary barriers to the recording of the contact details of both parents.

5.32 The Scottish Govenrment will continue to engage with the Association of Directors of Education in Scotland and the SEEMiS Group. The SEEMiS group are currently piloting new software known as ‘Parent Portal’ with one local authority, which will allow each parent to ‘link’ to their child within the SEEMiS system so that they can see information specific to their child’s school. It is understood that additional functionality will be added to Parent Portal such as ‘update my details’ to allow each parent to carry this out independently.

5.33 The Scottish Government will continue to engage with key organisations on relevant guidance and training materials relating to parental involvement and engagement.

Involvement of non-resident parent in health decisions relating to their child

5.34 The Scottish Government will work with health professionals to ensure that non-resident parents are involved in health decisions in relation to their child where this is in the best interests of the child and a child with capacity consents. In particular, the Scottish Government will draw attention to existing guidance in this area.