What are Parental Rights and Responsibilities? (PRR)
The law gives parents and sometimes other people looking after a child, parental responsibilities and rights which allow them to care for their child and be involved in their upbringing. They are set out in Sections 1 and 2 of the Children (Scotland) Act 1995.
Parental responsibilities include:
(a) to safeguard and promote the child’s health, development and welfare;
(b) to give the child direction and guidance;
(c) if the child is not living with them, to maintain personal relations and direct contact on a regular basis; and
(d) to act as the child’s legal representative.
These responsibilities may be exercised only so far as is practicable and in the interests of the child.
They come to an end when the child reaches the age of 16, except for the responsibility to provide the child with guidance, which lasts until the age of 18.
Parental rights more or less mirror parental responsibilities and they include the right:
(a) to have the child live with the holder, or otherwise to regulate the child’s residence;
(b) to control, direct or guide the child’s upbringing;
(c) if the child is not living with them, to maintain personal relations and direct contact on a regular basis; and
(d) to act as the child’s legal representative.
Each holder of parental responsibilities and rights can exercise their parental responsibilities and rights independently of the other but must receive permission of everyone with parental responsibilities and rights in instances of taking the child outside of United Kingdom (please see further information on traveling abroad below) and when formally recording a name change on a child’s birth certificate.
Who has automatic PRR in Scotland?
The people who automatically have Parental Responsibilities and Rights in relation to the child are:
- The child’s mother – the person who gives birth of the child, even if the child is not biologically hers, for example where an egg donation is used.
- The child’s father who is married to the mother
- The child’s father who is not married to the mother but who has gone through a joint birth registration process with the mother on or after 4 May 2006
- The civil partner or spouse of the child’s mother as prescribed by Section 42 Human Fertilisation and Embryology Act 2008
- A person recognised as the child’s second female parent as prescribed by Section 43 Human Fertilisation and Embryology Act 2008
An individual may be restricted in exercising their parental responsibilities and rights by a court order or a decision of the Children’s Hearing Panel, but only the court can remove someone’s parental responsibilities and rights.
Other people may obtain parental responsibilities and rights via court order or through being granted them in the Will of a parent who passed away.
Traveling abroad
A person traveling outside of United Kingdom with a child under the age of 16 needs to have permission from those who have parental responsibilities and rights in relation to that child.
Section 2 subsections 3 and 6 of the Children (Scotland) Act 1995 state that “…no person shall be entitled to remove a child habitually resident in Scotland from, or to retail any such child outwith, the United Kingdom without the consent of a person …” “…who for the time being has and is exercising … a right to have a child living with him or otherwise to regulate the child’s residence… and if the child is not living with him to maintain person relationship and direct contact with the child or a regular basis…”
How to find a solicitor
In order to find a solicitor, fist we would advise you to check whether you are eligible for Legal Aid Advice and Assistance.
There are two types of Legal Aid for civil cases: Advice and Assistance Legal Aid which covers meeting a solicitor and getting advice and assistance in the form of letters of negotiation and information/advice. The second type is Civil Legal Aid which is for being represented in a court procedure.
Legal Aid eligibility comes down to two tests: Means (money) and Merits (whether you are likely to win the case). Your income and savings will be taking into account. If you are an adult an income and savings of your partner will be taken into account as well. If you are no longer in a relationship with your partner their income should not be taken into account when assessing your Legal Aid eligibility. A Legal Aid solicitor will complete the application form for you. Legal Aid solicitors can be found on the Scottish Legal Aid Board Website: https://www.slab.org.uk/
All solicitors dealing with Legal Aid cases will also do private fee cases so it a useful way to find a solicitor.
The Scottish Legal Aid website has a “Find a solicitor” search tool which can be found under the “new to legal aid” tab at the top of their main website page. https://www.slab.org.uk/new-to-legal-aid/find-a-solicitor/
You can also find a solicitor through the Law Society of Scotland website which includes a list of all registered solicitors in Scotland, including those who represent Legal Aid clients and privately fee-paying clients.
Private adoption in Scotland
In Scotland, a child under the age of 18 years can be adopted by their stepparent. The relevant legislation is the Adoption and Children (Scotland) Act 2007. http://www.legislation.gov.uk/asp/2007/4/contents
Section 30 subsection 3 of the Adoption and Children (Scotland) Act 2007 applies to situations where a stepparent or partner who seeks to adopt the birth parent’s child is in an “enduring relationship” with a birth parent.
Section 31 of the Act provides the rules for “dispensing” with (i.e. doing away with) consent of the other birth parent where it is withheld.
To support a court application for stepparent adoption of a child, the applicant must submit a report prepared by a social worker, confirming that the person wishing would adopt the child is a suitable person for that.
You can contact your local authority to ask them to carry out the required report. The Local authority needs to be given notice at least 3 months before an application is lodged at court for an adoption.
From the age of 12 it is necessary to obtain child’s permission for an adoption order to be granted by the Scottish court.
In Scotland, the child’s nationality does not make difference in relation to the adoption process. It is, however, important that the child’s habitual residency is in Scotland.
It is important to consider seeking independent legal advice if you are considering stepparent adoption. Please see information below on how to find a solicitor.
Police powers in relation to Children and Young People
What happens if the police stop me in the street?
If the police think you may have something you shouldn’t have, such as drugs or a knife, they may ask you to stop and have a look through your possessions. This is done to prevent crime and keep people safe.
The police must have “reasonable grounds” to stop you. These are that they believe you are carrying an illegal item or are committing or about to commit a crime. They cannot stop you only by reason of your appearance, you being in a particular area or having previous contact with the police.
If you are under 18 the police must consider what is best for you. They must consider whether you understand what is happening, if you have a hidden disability such as autism and any other way to keep you safe.
The police must speak to you clearly, let you ask questions and ask if you need any extra support.
If you are in a public place, they cannot ask you to remove anything other than your coat, glove, hat or shoes.
If the police ask you must give them your true name, address, date of birth and nationality. You do not have to say anything else.
What happens if I am taken to a police station?
There are three ways the police may take you to a station. The first is if you volunteer to go. This means you can leave at any time. The second is if you are detained. The police must have reasonable belief that you have committed a crime. Thirdly, if you are arrested you must go with them to the station. You can only be charged with a crime if your parent or carer is with you. If you are detained or arrested, you have a right and should see a lawyer before and during questioning. The lawyer will not cost money.
The police can keep you in the station for up to 12 hours. They can only keep you longer if a senior police officer agrees.
Telling things to your parents/people who look after you
If you are being released from police custody or being brought before adult criminal court and under 16 years of age or under a Compulsory Supervision Order your parent(s) should be told about it. If you do not live with your parent, people who look after you may be told about you.
Your parent(s) or the people who look after you should be told:
- What court you need to go to
- The date when you have to go to court
- What you are being accused of doing and
- That your parent may need to be in court at the same time as you
A social worker may also be told about you.
What happens if I am charged with an offence?
If the crime you have allegedly committed isn’t very serious you might be able to go home. You could be given help if it was a problem such as drinking alcohol that got you into trouble. You could also be given a warning about your behaviour. This warning can only be recorded if you are over 16.
If the crime is more serious the police will tell the Children’s Reporter. The Reporter may bring you to a Children’s Hearing. This is where trained ordinary people listen to your problems and decide how best to help you.
Your crime should only be referred to the Procurator Fiscal (Prosecutors) and Criminal Court if it is very serious. Procurator Fiscals are the people who decide whether you will go to an adult court.
If you are prosecuted in adult criminal court, you will have support from a social work or court support worker. You can also have things called “special measures”. These are things which make the court process easier and less scary. Before you go to court you may be kept in a “safe place” such as a children’s home. The “safe place” may also be a police station but it should only be used if a senior police officer, also known as an Inspector, decides that it is not possible to use any other place, for example, because it is not safe for you to be there.
Child Welfare Reporter
My ex-partner and I cannot agree on a contact schedule for our children – what do we do?
You and your ex-partner should try to work out any issues relating to the children between you, but this doesn’t always work. One option is for both of you to attend mediation together where a trained and unbiased mediator can help you work together to agree a contact schedule that works for both of you and the children. If mediation is not an option or is unsuccessful, you might consider consulting a solicitor who specialises in family law to write to your ex-partner with your proposals. If you are still not able to come to an agreement your solicitor can assist you by raising a court action and a judge will decide the contact schedule.
There is a court order in place regulating contact with the children but I want to change the contact pattern – how do I do that?
If you and your ex both agree to change the contact schedule then you do not need to go back to court. You can simply adopt a new schedule that works for both parents and the children. If your ex does not want to change the contact pattern then you will need to go back to court to have the order changed. In order for the court to change the contact pattern you need to show that there has been a material change in circumstances since the last court order was granted.
My child has additional support needs that are not being met at school – what can I do to change this?
The first thing you should do is speak to the school about your child’s additional support needs and how they are not being met. Every child has the right to receive the support required to have access to education. It may be that there is a different school that would better meet your child’s needs. If you believe your child is being discriminated against you can complain directly to the education authority, failing which the Scottish Public Services Ombudsman.
I cannot find a solicitor to take on my case – what should I do?
It can be very difficult for families to access justice when something goes wrong. You may need to widen your search to find a solicitor who has the capacity to take on your case. Many solicitors offer remote appointments so you can look outside your local area. If your case is already in court you should tell the court as soon as possible that you have become unrepresented and that you are trying to find a new solicitor. The court might be able to give you suggestions of law firms to try. If you are trying to raise a court action but you absolutely cannot find a solicitor to take on your case, you might need to raise the court action yourself. You can find the form G6 (Initial Writ) on the Scottish Courts website – this is the form that you fill in to raise the court action. Once you have completed this form you can email it to the court to start the action.
Please note that the information contained on our website does not constitute legal advice and is here for information only. If you would like to discuss any of the information contained on this page further, please contact us via telephone or our contact page on this website.