Scotland's Children

A Brief Guide to The Children (Scotland) Act 1995

2. Family Law

Part I of the Act sets out a new framework for the relationship in law between parents and children. It defines the main responsibilities and rights of parents for the upbringing of their children. Parents have clear statutory responsibilities for

• safeguarding and promoting the child's health, development and welfare
• providing appropriate direction and guidance
• maintaining personal relations and contact with the child (including where the parent is not normally living with the child)
• acting as the child's legal representative

Parents have those rights which are necessary to enable them to fulfill their responsibilities.

These responsibilities and rights underpin the belief that children are best looked after by their parents and that both parents should share an active role in raising their children - even if parents separate or divorce. In such an event the responsibilities and rights of one parent are affected only to the extent that a court order specifies. If a family can decide reasonable arrangements for the future care of children, there is no responsibility on the court to fix such arrangements.

The Act continues the legal provision that a father who is not married to the child's mother does not have rights in relation to the child. This recognises that, in a number of such cases, the father has no interest in the child, and is usually absent. However, the Act makes it easier for an unmarried father who does take an interest in the raising of his child to acquire parental responsibilities and rights. Unmarried parents can agree between themselves that both should have parental responsibilities and rights and make agreements which have legal validity, and provide for a secure and stable environment for the upbringing of children. If an agreement is not possible, the father can apply to the courts for parental responsibilities and rights, as at present. An unmarried father with no parental responsibilities or rights, however, still has an obligation to support his child financially.

The duties and powers of courts in relation to children are significantly changed. The Act replaces "custody" and "access" which focus on the rights parents have over their child, with "residence" and "contact" orders which are more child-centred and set out responsibilities in relation to the child. The Act ensures that an order limiting or amending a parent's right to maintain personal relations and contact with the child is only made if it is in the best interests of the child. Parents may decide jointly where and when the child is to reside. In making this decision they are bound to take into account the views of the child.

If is necessary for the court to make an order relating to where the child is to live, the court may order that the child should reside at different times with each of his or her parents, and not just with one parent all of the time.

Unless the court orders differently, both parents are expected to retain their parental responsibilities and rights and to be active players in deciding how their children grow and develop. This emphasises that both parents continue to have responsibilities for their children, even if they separate or divorce.

The Act is also concerned with the administration of children's property in certain circumstances. It improves protections in the law for children for instance, when an executor or trustee holds property for a child who is under the age of 16 years.

Children under the age of 16 years, who have a general understanding of what it means to do so, may instruct a solicitor in connection with any civil matter and can sue or defend in any civil proceedings. They can also apply for legal aid. They can be represented in court as individuals if they so wish.