After the Father’s Day celebrations of the weekend, it seems the perfect time to reflect on whether a father has parental rights and responsibilities in respect of a child and, if not, how these can be gained. Unlike a child’s mother, a father does not always automatically acquire these rights and responsibilities.
It is a hallmark of a democratic society that a parent should be free to raise a child in the best way that they see fit. Notwithstanding this the Children (Scotland) Act 1995 provides various responsibilities and rights which parents have in order to promote the welfare of children in Scotland. Parental responsibilities and rights work in cohesion. Therefore, for every responsibility that appears in statute there is a corresponding right afforded to parents.
In Scotland, a parent has the following responsibilities to a child: to safeguard and promote the child’s health, development and welfare; to provide direction and guidance to the child in a manner appropriate to the stage of the child’s development; if the child is not living with the parent, to maintain personal relations and direct contact on a regular basis and to act as the child’s legal representative. Parental responsibilities end when a child reaches 16, except the responsibility to give guidance which lasts until the age of 18.
The corresponding rights which exist in order for a parent to fulfil their responsibilities are: to have a child living with a parent or otherwise regulate the child’s residence; to control, direct or guide the child’s upbringing in a manner appropriate to the child’s stage of development; if the child does not live with the parent, to maintain personal relations and direct contact with the child on a regular basis and to act as the child’s legal representative. Parental rights end when a child turns 16.
By virtue of the 1995 Act a mother automatically has parental rights and responsibilities in relation to her child. A child’s father automatically obtains parental rights and responsibilities in two situations. The first is where he was married to the mother of the child at the date of the child’s conception or thereafter. Secondly, where the father has not married the child’s mother he will automatically obtain parental responsibilities and rights if he is named on the child’s birth certificate as his or her father where the birth was registered on or after the 4th of May 2006.
Where neither of the above circumstances applies, there are two ways in which a father can obtain parental rights and responsibilities. Firstly, where a mother has not previously been deprived of some or all of her parental rights and responsibilities, she may enter into a formal agreement with the father under which he will obtain the responsibilities and rights detailed in the Children (Scotland) Act 1995 that he would have if he were married to the child’s mother. Such an agreement can be entered into without involvement of a court. To be legally effective and enforceable, the agreement should be in the form prescribed by legislation and registered in the Books of Council and Session at a time when the mother still has the parental rights and responsibilities she had when she signed the agreement. Once this agreement is registered, it becomes irrevocable except by a court order. Such agreements can only entered into between a mother and a man who is the biological father of her child.
Secondly, a father can apply to the sheriff court under s11 of the Children (Scotland) 1995 Act for an order giving him parental rights and responsibilities. A father has title to do so as a person who ‘not having and never having had, parental responsibilities and rights in relation to the child, claims an interest’. Genetic and/or emotional ties towards a child tend to be sufficient to constitute an interest. However, when granting an order under this section, the welfare of the child is the paramount consideration and as such the court will only grant parental rights and responsibilities if it is in the child’s best interests.