| 6.
Parental Responsibilities and Rights: Step-Parents |
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| 6.1 Acquisition of parental
responsibilities and parental rights by step-parents |
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| 6.1.1 At
present a step-parent can seek to adopt a child or can
make an application to a court for parental
responsibilities and rights. Adopting a child will have
the effect of removing all legal ties to the natural
parent, including rights to aliment and succession. It
will also tend to remove all contact with the natural
parent and this may not be appropriate for many children. |
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| 6.1.2 The
alternative is to seek to acquire parental
responsibilities and rights by an order under section 11
of the Children (Scotland) Act 1995. This does not affect
the child's relations with the natural parent, and does
not change rights to aliment and succession. The child
might independently have a right to aliment from the
step-parent if he or she has been "accepted as a
child of the family". A step-parent might also be
delegated parental responsibilities and rights on a
temporary basis under section 3(5) of the 1995 Act. In
that case the step-parent would have the responsibility
under section 5 of the Act to do what is reasonable to
safeguard the child's health, development and welfare. |
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| 6.1.3 In
order to avoid the necessity in every case of the
step-parent going to court for a formal order conferring
parental responsibilities and rights, it is proposed that
it should be possible to make a Parental Responsibilities
and Parental Rights Agreement, similar to one made under
Section 4 of the Children (Scotland) Act 1995. It would
be made between the step-parent and both the natural
parents (where they both have parental responsibilities
and rights). Like the section 4 Agreement, to be valid it
would have to be registered in the Books of Council and
Session. Once a step-parent had acquired parental
responsibilities and rights in this way, it would seem
right that they could only be taken away by court order.
This would distinguish a formal Agreement from the
informal arrangements outlined above. |
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| 6.1.4 Where,
for whatever reason, only one natural parent has parental
responsibilities and rights then it would not be possible
to make an agreement. This would avoid the situation
where parental responsibilities and rights were
transferred to someone unrelated to a child, purely on
the say of a person who might be suborned by the
step-parent. Such a safeguard is needed as this route
would avoid the investigation of a would-be adoptive
parent, or the judicial supervision in the case of court
proceedings. |
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| 6.1.5
Because such an agreement would depend on the consent of
both natural parents, it might be expected that it would
not often be used. Where agreement cannot be reached, the
step-parent would, as now, have to apply to the court.
Nonetheless, it might well prove useful in allowing
parents to avoid the necessity of going to court. |
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| Question 18. Views are sought on whether
a step-parent should be able to make an agreement with
both the natural parents of a child which would give him
parental responsibilities and parental rights. |
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