A body of research exists which supports the hypothesis that children fare better in their education (measured in terms of attainment and general happiness) when both of their parents are actively interested and engaged. It is, however, far from an uncommon experience of children in Scottish society to have separated parents. The dynamics of family relationships can be complex and appropriate arrangements require to be put in place by schools in Scotland to accommodate and reflect the diversity of family structures. An unfortunate reality is that many parents and, on occasion, schools are unaware of the responsibilities of rights and parents concerning matters which relate to a child’s attendance at school. Here are some common queries related to this:-

Do I have parental responsibilities and rights in respect of my child and, if not, how do I obtain those?

A mother automatically holds parental responsibilities and rights in respect of a child. A father who is married to a child’s mother at the time of the child’s birth, who subsequently marries the child’s mother or (for children born after 4th May 2006) is named on the child’s birth certificate holds full parental responsibilities and rights in respect of a child. Any other father would require to obtain parental responsibilities and rights by agreement of the child’s mother (and the parties signing an Agreement in terms of Section 4(1) of the Children (Scotland) Act 1995) or by obtaining an order for parental responsibilities and rights.

What are parental responsibilities and rights?

Parental responsibilities and rights are enshrined in section 1 and 2 of the Children (Scotland) Act 1995. These extent to responsibilities, inter alia, to “safeguard and promote the child’s health, development and welfare” and to “provide in a manner appropriate to the stage of development of the child direction and guidance to the child” in so far as practicable and in the interests of the child. Parents also have corresponding rights to have their child live with them or otherwise regulate the child’s residence and to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing.

What rights do individuals have regarding obtaining information from and engaging with schools?

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. A parent is defined in section 125(1) of the Education (Scotland) Act 1980 as a “guardian and any person who is liable to maintain or has parental responsibilities…in relation to, or has care of a child or young person.” This group is, of course, wider than those simply with parental responsibilities and rights and could include, for example, involved step-parents and grandparents caring for a child without any formal parental responsibilities and rights.

Parents have an equal status in their relationship with a child’s school unless there is an order of court which limits or removes an individual’s ability to exercise their parental rights and responsibilities. They are entitled to attend school events, receive copies of school reports and other important correspondence and attend parents evening (and request a separate meeting from the other parent if necessary).Parents can access educational records (such as absence, welfare and behaviour records) for a child unless one of the very limited exceptions in the Pupils’ Educational Records (Scotland) Regulations 2003 applies. These rights apply even if a child is not maintaining direct relations with either parent. Schools can often find it difficult to manage the expectations and demands of parents following the breakdown of a relationship. A school cannot, however, refuse to provide educational information to a parent simply because another objects, unless that objection relates to one of the limited statutory exceptions to the disclosure rule. This is a complicated area of law and specialist advice should be sought in the event that a parent experiences difficulties.

I want to remove my child from their current school placement and/or enrol them at a specific school or remove them from parts of the curriculum, but my ex-partner does not agree. What should I do?

Those with parental responsibilities and rights in respect of a child should consult with one another regarding important matters affecting a child, including enrolment to and withdrawal from a particular school and removal of a child from part of the curriculum (e.g. religious or sex education). Parents ought not to make unilateral decisions in that regard. If parents cannot agree on such matters, one or both parents should ask a court to make a determination on that specific issue in terms of Section 11(2)(e) of the Children (Scotland) Act 1995. If a parent is concerned that the other parent will unilaterally remove a child from a particular school placement, they ought to write to the Head Teacher advising that they hold parental responsibilities and rights in respect of their child and do not consent to the child’s placement being withdrawn. They should also consider seeking an order of court (interdict) to prevent the child being removed from their school placement.

What should I do if there is a dispute over payment of school fees?

Difficulties can arise in relation to fee paying schools. An action can be raised by one parent against the other in terms of Section 1 and 3(1)(b) of the Family Law (Scotland) Act 1985 seeking alimentary payments of a special nature including educational expenses in respect of a child.

Can I remove my child from their classroom, for example, at the end of the day?

An individual can exercise their parental rights in respect of a child, including removing the child from school, without the consent of the other parent, unless any decree or deed conferring the right or regulating its exercise otherwise provides. This could include the existence of an interdict or an order depriving or restricting an individual’s parental responsibilities and rights. A parent should also not act contrary to any residence order, contact order or signed Minute of Agreement which prescribes care arrangements in respect of a child. Unless one of these grounds apply or a genuine child welfare concern exists, a school cannot refuse to hand a child over to a parent, irrespective of any instructions the school has received from the other parent.

Can I take my child out of school and abroad without my ex-partner’s consent?

Both parents ought to consent to a child being removed from school for the purposes of a holiday. A parent wishing to take a child abroad must have the consent of the other parent who holds parental responsibilities and rights. If consent is refused by the other parent, the parent wishing to go on holiday would require to raise an action at court for a specific issue order in terms of Section 11(2)(e) of the Children (Scotland) Act 1995.

Can my ex-partner change my child’s surname?

One parent cannot unilaterally amend a child’s surname by updating their birth record, nor should they sign a Statutory Declaration informally changing the child’s name without the consent of the other parent. If there is a dispute between parents, including where one parent wishes to change the child’s surname and the other refuses to consent or one parent has unilaterally changed the child’s name by Statutory Declaration, an action would require to be raised court for a specific issue order in terms of Section 11(2)(e) of the Children (Scotland) Act 1995. It follows from this that a school ought not to amend their records to change a child’s surname at the insistence of one parent when the school is aware of another parent holding parental responsibilities and rights. If this does occur, the other parent can write to the school informing them that they do not provide consent to the change of surname and that the child’s name should appear in their records as it does on their birth certificate.


Garry Sturrock

Senior Associate