This article explores the legal concept of parental responsibility and rights and separated parents' access to medical and educational information concerning their child.
Parental responsibility
The Children (Scotland) Act 1995 establishes who has parental responsibilities and rights for a child. These are the child's mother, father, any person who has adopted a child, or where parentage is established by the Human Fertilisation and Embryology Act 1990 or Part 2 of the Human Fertilisation and Embryology Act 2008. The Act goes on to define the parental responsibilities of parents as follows:
a) to safeguard and promote the child's health, development and welfare;
b) to provide direction and guidance to the child in a manner appropriate to the stage of the child's development;
c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and
d) to act as the child's legal representative.
To enable a parent to fulfil these responsibilities, parents have the following rights:
a) to have the child living with the parent or otherwise to regulate the child's residence;
b) to control, direct or guide the child's upbringing in a manner appropriate to the child's stage of development;
c) if the child does not live with the parent, to maintain personal relations and direct contact with the child on a regular basis; and
d) to act as the child's legal representative.
Parental rights end once a child reaches the age of 16, and parental responsibilities also end at 16, except insofar as the responsibility to provide guidance to a child, which lasts until 18, and financial responsibilities towards a child or young person.
Disputes can arise between parents as regards their child's health, development and welfare. In some situations, one parent may seek to prevent or restrict the access of the other parent to the child's education or health records.
Medical information about a child whose parents are separated
Anyone with parental responsibility can seek access to a child's medical records (Children (Scotland) Act 1995). Nevertheless, the child may themselves have capacity to decide whether they want this information to be disclosed to either parent. The General Medical Council (GMC) 'Professional standards 0-18 years' guidance (15 October 2007), sets out to health professionals that in Scotland, anyone aged 12 or over is legally presumed to have capacity and can allow or prevent access to their medical records by others, including their parents. The GMC guidance goes on to state that a doctor may allow someone with parental responsibility to access a child's medical records if the child consents, or if they lack capacity and it is not contrary to the best interests of the child for disclosure to be made. Any records that contain information given by the child in confidence should not normally be disclosed without the child's consent, however. The Medical Defence Union 'Children whose parents are separated' guidance (22 January 2024), suggests that if one parent asks a GP practice to disclose information about the child, there is no obligation to seek consent from the other parent, or to inform the other parent that the request has been received. The guidance states, that it may, however, be reasonable to ensure that the other parent is aware of the request so that any objection can be considered.
It is inherently better for children if separated parents can agree on decisions affecting their children themselves. However, when this is not possible, a court can be asked to determine the best interests of the child. There may be times when a court will regulate parental rights and responsibilities in terms of contacting health services. In the case of SAN v KJN [2013] 12 WLUK 49, the mother of two children sought an order extinguishing the whole parental rights and responsibilities of their father. Following the separation of the parties, the father exercised his parental right to seek information about the children from their school and doctors, which resulted in a "strained relationship with a medical professional". As this was unsettling for the children and damaging to their welfare, the sheriff granted an interdict to prevent the father from contacting the children's doctors and schools. Instead, he was to request an annual report from the children's mother, and he was to be advised of any critical medical issues arising.
The case of F v M [2021] EWFC 18, was described as the "saddest of cases illustrating the desperate and lasting damage that can be done to children when their parents separate." The case pertained to an ongoing dispute between separated parents concerning contact but also discussed the subject of access to medical records. In this case the mother of the children tried to obtain access to the eldest child's medical records but was prevented from doing so by the GP practice as they were under the impression that she was not entitled to see them. The surgery was told previously by the father not to disclose any information to the mother, in his attempt to prevent the mother from exercising her parental responsibility. The judge stated that this was an "example of the way in which [the father's] actions, whether inadvertent or deliberate, have undermined [the mother's] role as the children's mother and as a parent with parental responsibility, as well as also causing upheaval and unnecessary work for professionals involved in the case". The judge went on to state that "all three children have been caused persistent and significant harm as a direct result of the action of both parents, separately and jointly, arising from the discord between the parents".
Parental access to information about their child's schooling
The Pupils' Educational Records (Scotland) Regulations 2003 provides that anyone with parental responsibilities and rights is entitled to obtain the educational records of their child. Furthermore, the Scottish Schools (Parental Involvement) Act 2006 places an obligation on local authority primary and secondary schools to actively engage with parents (especially non-resident parents) regarding the education of their children and to prepare a Strategy for Parental Involvement. The Education (Scotland) Act 1980's definition of a parent includes "guardian and any person who is liable to maintain or has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to, or has care of a child or young person", and consequently provides parents with "a right to receive advice and information about their child's education, general information about the school, to be told about meetings involving their child, and to participate in activities, such as taking part in decisions relating to a Parent Council".
If a parent is liable to maintain a child but does not have parental responsibilities and rights, then they are still able to access educational records, however that is as much as the legislation allows. The case of WT v RM 2006 Fam. L.R. 100, considers this point. Sheriff Morrison KC stated, "in relation to education, it was submitted that the pursuer's motives were met by legislation and the undertakings the defender was prepared to give. The legislation referred to was the Pupil's Educational Records (Scotland) Regulations 2003. These regulations entitle the pursuer to access to or disclosure of Edie's educational records…The pursuer's entitlement would arise because he is a parent liable to maintain Edie notwithstanding that he does not have parental responsibilities and rights…These regulations do not, to my mind, permit, for example, ready access by a parent without parental responsibilities and rights to teachers or to attend parent nights. The pursuer has already had experience of being excluded from direct contact with a school. He is not told, for instance, when parents' nights are. The regulations are not sufficient to meet a need to be involved in all matters affecting education. They are simply a statutory right to access to school records."
Sometimes parents without parental responsibilities and rights will seek an order from the court to seek parental responsibilities and rights. In such situations, the court's paramount consideration will be the welfare of the child and what is in his or her best interests. In WT v RM, Sheriff Morrison identified eight criteria which should be determining an application for parental responsibilities and rights. These include the degree of commitment by the applicant to the child; the degree of attachment, the commitment to the child's welfare, the applicant's motives and their willingness to do their best for the child. In the case of Barry v McBride [2012] 5 WLUK 586, the pursuer, an unmarried father of a 6-year-old girl, had sought information about his daughter from the school but they declined to provide this on the basis that he did not possess parental rights and responsibilities. He subsequently sought an order for parental responsibilities and rights in relation to his daughter, but the court declined to grant such an order on the basis that it considered that this would not be conducive to the best interests of the child. In that case, it is of note that the defender's view was that the child's father should take an interest in their daughter's life, and she insisted that she would assist him in obtaining access to medical records and school information about their daughter if he were to do so. In a similar case, A.H v J.M [2010] ScotSC 70, the pursuer sought an order for parental responsibilities and rights to permit him to have prompt and direct access to his son's school and medical reports and to enable him to have access to teachers and doctors as required. In this case parental responsibilities and rights were granted, with the caveat that the pursuer will, "restrict seeking to intervene in R's upbringing by confining such interventions to matters of significant importance affecting R's health, education, welfare or the like."
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