Scotland's Children Children (Scotland) Act 1995 Implementation Newsletter No 3

Parental Responsibility

Who has parental responsibilities and rights?

Mothers and married fathers Unmarried fathers by formal agreement with the mother Any person as directed by the court

Responsibility to maintain personal relations and direct contact

If a parent is not living with his or her child, perhaps because of divorce, that parent should still keep in close touch and play an active part in the child’s upbringing.

This means that both parents should still jointly be involved in how their children are raised, including jointly making major decisions about their children. It also means that when parents do not live together, they should agree between themselves where their children are to live. Children will be able to live with both parents at different times.

The old terms of ‘custody’ and ‘access’, with their emphasis on the rights of parents, will no longer apply. Instead, new concepts of ‘residence’ and ‘contact’ are introduced, focusing much more on the continuation of shared responsibilities towards the child.

The child’s welfare

When deciding any matter which affects a child, a court’s paramount consideration will be the welfare of the child. The court is also able to make orders relating to the child, even though neither of the parents have applied for such an order.

It would therefore be entirely possible for the court to reach a decision which might not be exactly what was sought by either of the parents. This underlines why parents should give a great deal of thought to the welfare and wishes of their child before making any major decision - or asking the court to do so.

Listening to children

When parents are considering any major decision which would affect their children, they should take account of their children’s views, bearing in mind the age and maturity of their children.

For instance, if parents are thinking about what school their child should attend, they should ask their child for his or her views and consider them appropriately. The same applies if parents are thinking of separating or divorcing.

If it is necessary for a court to consider a matter which affects a child, the court too will give the child the opportunity to express his or her views.

Non-intervention by the courts

A court will only make an order - for example a residence order saying where a child should live - if the parents cannot decide between themselves.

Before it considers whether an order needs to be made, the court will want to know what the parents have done to try to reach agreement. Each parent should try to remember that the other will continue to have their full parental responsibilities and rights unless the court takes all or some of them away.

If the court thinks that it would be better for the child not to make an order, then it will not do so. The court can also refer a family to mediation to help it reach its own decision.