Children's hearings training resource manual: volume 1

1 Parental Rights and Responsibilities

Parental responsibilities - s 1 of the 1995 Act

These responsibilities must be implemented only as far as is practicable and in the interests of the child.

Parents have a number of responsibilities in respect of their children which are:

• To safeguard and promote the child's welfare until the child reaches the age of sixteen.
• To provide direction and guidance in a manner appropriate to the stage of development of the child up to the age of eighteen.
• To maintain personal relations and contact with the child on a regular basis (even if the child is not living with the parent) up to the age of sixteen.
• To act as the child's legal representative until the child is sixteen.

Parental rights - s 2 of the 1995 Act

Parents have a number of rights which flow from parental responsibilities:

• To have the child living with the parent or otherwise regulate the child's residence.
• To control, direct or guide the child's upbringing in a manner appropriate to the stage of development of the child.
• To maintain personal relationships and direct contact on a regular basis if the child is not living with the parent.
• To act as the child's legal representative.

It is clear from the above that parental rights and responsibilities are closely linked and flow from and into each other. In order to be able to exercise parental rights, the parental responsibilities must be met: parental rights exist in order to allow the parent to fulfil their parental responsibilities.

Parental responsibilities and rights

The concept of parental responsibilities and rights underpins the position that children are best looked after by their parents and both parents should share an active role in raising children, even if parents separate or divorce.

People who hold or may gain parental responsibilities and rights

The 1995 Act covers a number of people who hold parental responsibilities automatically and those who gain rights by agreement or order of court:

• A mother who gives birth to a child.
• A father if married to the mother at the time of conception or thereafter.
• An unmarried father who by agreement with the mother has been registered in the Books of Council and Session as the child's father under section 4 of the 1995 Act.
• An unmarried father who is registered as the father of the child on or after 04/05/06.
• A guardian who is appointed by a parent to act in the parents place in the event of his/her death under section 7 of the 1995 Act.
• A person in whom parental responsibilities or parental rights has been vested in terms of s 11(2)(b) of the 1995 Act.
• A person having parental responsibilities or rights for a child in terms of s 11(12) of the 1995 Act.
• A person in whom parental responsibilities and right are vested by way of a permanence order or adoptive parents.

Responsibilities or rights will be held unless removed by an order of court.

The 1995 Act states that any person who has parental responsibilities and rights is not entitled to:

• act in any way which would be incompatible with any court order or any order imposed by a children's hearing.
• abdicate to anyone else the responsibilities or rights but may make arrangements for some or all of the responsibilities or rights to be exercised on his/her behalf. s3(4-5)1995 Act

Applications for parental responsibilities and rights - S 11 of the 1995 Act

An application can be made to court by any person with an interest in the child for an order awarding some or all of the parental responsibilities or rights in terms of section 11 of the Children's (Scotland) Act 1995. A court may make an order depriving a person of some or all of his parental rights in relation to a child. It can also make an order giving some or all parental responsibilities or rights to another person. These orders may be reviewed again by application to court and can last until the child is sixteen. In addition a permanence order may authorise the sharing of responsibilities and rights.

A parent only loses parental responsibilities and rights in relation to their child in specific circumstances i.e. if they are removed by order of court under section 11, by virtue of a Permanence Order or by adoption.