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Exercising parental responsibilities and rights during COVID-19 outbreak

We understand it may be difficult to know how to correctly fulfil your parental responsibilities and exercise your parental rights during the COVID-19 outbreak. In particular, we have heard from many parents and carers who are concerned about how contact between a child and their non-resident parent can operate safely during these unprecedented times.

The day to day exercise of parental responsibilities and rights still lies with the people who have those parental responsibilities and rights. If you are not sure how to exercise your parental responsibilities and rights at this time, we would advise you to bear in mind that first and foremost you have a responsibility to safeguard and promote your child’s health, development and welfare and your child’s best interests must be your main consideration when making any decisions that affect their life.  It is also important to bear in mind that every child/family is different so what is right for one child may be totally wrong for another.  We would therefore urge parents and carers to exercise common sense when potentially altering contact arrangements.

You may find it useful to review the most recent COVID-19 Scottish Government advice www.gov.scot/coronavirus-covid-19/. The Lord President (most senior judge in Scotland) has also published updated general advice on parental responsibilities and rights on 16 July 2020.  We would refer you to the Scottish Courts website to have a look at the guidance titled “Updated Guidance on Compliance with Court Orders Relating to Parental Responsibilities and Rights” https://www.scotcourts.gov.uk/.

What are PRRs?

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 Parental Responsibilities and Rights 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. 

https://www.lawscot.org.uk/find-a-solicitor/ 

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 need to be given notice 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: 

  1. What court you need to go to
  2. The date when you have to go to court
  3.  What you are being accused of doing and 
  4. 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.  

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. 

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The Scottish Child Law Centre seeks to ensure that the information published on its website is up to date and accurate. However, the information on the website does not constitute legal or professional advice and the Scottish Child Law Centre cannot accept any liability for actions arising from its use. The Scottish Child Law Centre cannot be held responsible for the contents of any pages referenced by an external link. Any personal data collected through this website will be treated as confidential in line with the principles of the Data Protection Act 2018.