In November 2023 the BBC published an article regarding a family court case (in Wales), concerning a mother seeking removal of her child's father's parental rights and responsibilities (PRRs) following his conviction for serious sexual offences involving children. The court, despite indicating that the test for removal of PRRs was very high, removed the majority of the father's PRRs. The most significant determination was that contact with the child was prohibited until the child reaches the age of 18.
What are PRRs in Scotland?
PRRs are the rights and responsibilities conferred upon parents by the Children (Scotland) Act 1995 and they provide the legal structure in which children are nurtured until they reach adulthood.
Parental responsibilities are set out in section 1 of the Children (Scotland) Act 1995. These are: (a) to safeguard and promote the child’s health, development and welfare; (b) to provide, in a manner appropriate to the stage of development of the child, (i) direction; and (ii) guidance, to the child; (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.
Parental rights are set out in section 2 of the 1995 Act. These are: (a) to have the child living with them or otherwise to regulate the child’s residence; (b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing; (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.
Who has PRRs in Scotland?
In Scotland, certain individuals automatically have PRRs and they are: (i) the biological mother, including mothers who have given birth using a donor egg; (ii) the biological father, if he was married (or in a civil partnership) with the child's mother at the time of conception, or after the child was conceived; and (iii) the spouse or civil partner of a woman at the time she has the egg donation, embryo transfer or donor insemination provided the spouse or civil partner has consented to the treatment.
A biological father, who is not married to the child's mother but jointly registers the child's birth with the birth mother, will, on registration of the child's birth, obtain PRRs.
Parents who have adopted a child will obtain PRRs when the adoption order is granted and, at the same time, the PRRs of the biological parents will end. Parents who have a child through surrogacy will obtain PRRs when they are named on the parental order and, at the same time, the PRRs of the birth mother will end. The parental order cannot be applied for until the child is at least six weeks old although it may take many months to obtain the parental order.
Where parties are unmarried, the partner of a woman who is undergoing egg donation, embryo transfer or donor insemination will obtain PRRs if the partner has applied for them, the partner's PRRs are not automatic.
Where a parent does not qualify for PRRs through one of the above, an application must be made to the local sheriff court seeking an order for PRRs in respect of their child.
Proposed amendment to the law in England & Wales
Following the BBC's reporting of the Welsh case, Labour MP Harriett Harman, tabled an amendment to upcoming legislation in England and Wales, proposing that sexual offenders (who are convicted of sexual offences involving children) are automatically deprived of their PRRs in respect of any children they have. The rationale behind this being, that although other children are protected from convicted sexual offenders, their own children are not protected. At present, in order to obtain such protection and have PRRs removed, the child' s other parent has to incur the emotional burden, uncertainty, time and expense of bringing a court action against the convicted sexual offender.
What would similar amendments look like in Scotland?
In Scotland, any decision that a court makes in relation to a child (that is any person under the age of 16 years), is done so on the basis that the child's welfare is the paramount consideration. The interests of the parents (or other interested adults) are largely irrelevant to the court's decision making.
It is possible that Scotland may amend the law to allow for the automatic deprivation of PRRs for those convicted of sexual offences involving children, although no such proposed changes are yet before Parliament. If a proposed amendment was made, the primary focus is likely to be on whether it is in the child's best interests to strip the convicted sexual offender of their PRRs. However, legislators may choose to assign greater weight to other factors, such as the interests of the innocent parent. This could involve balancing the time and expense they may incur in seeking to have the convicted sexual offender's PRRs removed, with that of automatically removing them.
Conclusion
It is, for many people, an argument that the automatic removal of a convicted sexual offender's PRRs (where that offender has been convicted of a sexual offence involving a child) is in their child's best interests. However, there may be some cases (however much of a minority) whereby it is not in the child's best interests to have no relationship with the parent convicted of a serious sexual offence involving a child.
As the law stands currently, it is always open for any person who has been deprived of their PRRs to apply to the court to have them reinstated. Although where they have been removed, particularly because of a conviction for a sexual offence involving a child, it is unlikely that a court would consider it to be in a child's best interests that the offender's PRR's are reinstated.
