Parental Responsibilities and Rights in Scotland – What are they, and who is entitled to them?

What are Parental Responsibilities and Rights?

Parental responsibilities and rights, or PRRs, are given to the parents of a child in order that they can be involved in the life of, and take steps to care for and look after the child.   These rights and responsibilities are not absolute, and must always be considered alongside the welfare and best interests of the child.  They are set out in sections 1 and 2 of the Children (Scotland) Act 1995.

Section 1 of the Act states that a parent with parental rights and responsibilities in respect of a child has the responsibility:

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

(b)   to provide the child with direction and guidance;

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

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

Section 2 of the Act states that a parent with parental rights and responsibilities in respect of a child, in order to enable him or her to fulfil his parental responsibilities, has the right:

(a)   to have the child live with him or her, or otherwise to regulate the child's residence;

(b)   to control, direct or guide the child's upbringing;

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

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

 

Who is entitled to Parental Responsibilities and Rights?

The mother of a child automatically has parental responsibilities and rights.  Fathers automatically have parental responsibilities and rights where they are married to the mother of a child at the time of the child's birth. If the father subsequently marries the child's mother, he obtains parental rights and responsibilities.  Same sex partners will both have parental responsibilities and rights where they were in a civil partnership at the time of the fertilitytreatment.

The Family Law (Scotland) Act 2006 changed the position in respect of parental responsibilities and rights for unmarried fathers. If your child was born before 4th May 2006, and you are named as the child's father on the child's birth certificate, but are not, and have never been married to the mother of the child, you are not automatically entitled to parental responsibilities and rights.

If your child was born on or after 4th May 2006, and you are named as the child's father on their birth certificate, you are automatically entitled to parental responsibilities and rights, regardless of your relationship with the child's mother.

 

How can you obtain Parental Responsibilities and Rights if you are not automatically entitled to them?

If you are not named on the child's birth certificate, you can obtain parental responsibilities and rights in one of two ways.  If the mother is prepared to consent to it, you can enter into a Parental Responsibilities and Parental Rights Agreement (PRPRA).  If the mother of the child is not prepared to agree to enter into an agreement granting parental responsibilities and rights, a father can apply to the courts (almost always the Sheriff Court) for a court order granting them.

It is possible for people other than the biological parents of a child to obtain parental responsibilities and rights.  The court may grant them to step-parents, grandparents, aunts, uncles or siblings amongst other relatives. 

When deciding whether to grant a party parental responsibilities and rights, the overriding consideration for the Sheriff is the child's best interests - is it in the child best interests for this individual to have parental responsibilities and rights over them?  The Sheriff will consider a variety of factors including the party's commitment to the child, the child's attachment to the party and the party's motivation for seeking the order.

If you would like to discuss a Parental Responsibilities and Parental Rights Agreement, or seek advice on applying to the court for PRRs, please contact a member of our family law team.  We have offices across Scotland in Edinburgh, Dalkeith, Musselburgh and Bathgate.