Children across the UK have either returned to or will shortly be returning to school. But who determines where a child goes to school under Scots Law?
This comes down to who has parental rights and responsibilities in respect of a child. In Scots Law, a child’s mother automatically has parental rights and responsibilities (“PRR”) regardless of whether or not she has at any time been married to the child’s father. The father of the child will automatically obtain PRR if he was married to the child’s mother at the date of conception or at any time thereafter. The father will also obtain these rights if he is registered as the child’s father on the birth certificate -this rule only applies if the registration took place on or after 4th May 2006. Where a woman is married to, or in a civil partnership with the child’s mother then she will also automatically have PRR in respect of the child. An application can be made to the court to obtain PRR in respect of a child by any person with an ‘interest’. A genetic or emotional tie to the child ( for instance a child's grandparents) would be sufficient to constitute an ‘interest’. Any person with an ‘interest’ in the welfare of the child can also make an application.
What are parental rights and responsibilities?
Those with PRR are responsible for promoting the child’s health development and welfare and to provide guidance to the child. Parents must decide where the child is to live and to ensure that contact is maintained with the non- resident parent. They can also act as the child’s legal representative. It is important that the child’s parents consult with one another in relation to all major decisions affecting the child, such as where the child is to go to school.
What if there is a dispute in relation to the exercise of parental rights and responsibilities for instance if parents cannot agree where a child goes to school?
Separating parents will often find themselves in dispute in relation to decisions affecting the child. They may, for instance, disagree with each other as to where, and with whom the child should live, how often they see the other parent, whether a child can go abroad on holiday with the other parent or move away permanently with that parent, as well as where they should attend school. Although court is generally seen as the last resort, in those circumstances, it may be necessary for a parent to apply to the court to ask the sheriff or judge to determine the dispute.
In considering whether or not to make an order, the court has to exercise its discretion. The paramount consideration is the welfare of the child and the court ought not to make any order unless it considers that it is necessary and it would be better for the child that the order be made than that none should be made at all. The test is ultimately what is in the best interests of the child.
The court will allow a child to express a view in relation to the matter in dispute. The court must, however, take account of the child’s age and maturity in determining how much weight to give to that view. A child aged 12 or over is presumed to be of sufficient age and maturity to form a view, but consideration can be given to the views of a younger child if the sheriff or judge is persuaded that they are sufficiently mature.
At present, most court hearings are continuing to take place by telephone or video conference due to the Coronavirus pandemic.
Courts will generally encourage parents to make decisions about their children. They know their children best after all. If agreement can be reached, this can be documented in a ‘contract’ signed by both parties. Mediation is also often encouraged.
If you require advice in relation to this or any other family law issue, please contact one of our specialist Family solicitors. We are here to assist and you can contact us by e-mail, telephone or a video call can be arranged if required.
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