Page 2 - Parental Rights and Responsibilities

GUIDE TO PARENTAL RIGHTS AND RESPONSIBILITIES

We are often asked to give advice on this area of Child Law. The law has recently been changed under The
Family Law (Scotland) Act 2006. That date is important as you will see below.

If you have parental rights over a child then you have the ability to control, direct and guide your child in a manner

appropriate to their stage of development. This includes a right to decide and consent to medical treatments and
how the child should be educated. You also have the right to have your child living with you or maintain direct
contact with them on a regular basis.

However with the entitlement of parental rights come responsibilities. You will have a duty to safeguard and
promote your child’s well-being and welfare and provide guidance to the child according to their stage of
development. You also have the responsibility of staying in touch with your child. Basically you have a duty to
care for and protect your child.

Who then is entitled to parental rights and responsibilities? The mother of the child automatically obtains these
rights.

The father of the child is not automatically entitled to these rights. If the father is married to the mother on the
birth of the child or subsequently marries her he will obtain parental rights and responsibilities

If this is not the case and the child’s birth was not registered on or after 4th May 2006 (the date when the new
Family Law commenced) the only way a father can obtain parental rights is if the mother agrees or if agreement
is not forthcoming then he will have no option but to apply for a Court Order.

The Family Law Act mentioned above, has now changed the position for fathers. The unmarried father will
automatically obtain parental rights and responsibilities if the mother and father register the birth together on or
after 4th May 2006 and both names appear on the birth certificate.

If the father’s name is not on the birth certificate he can still obtain rights if mother agrees and completes a
Parental Responsibilities and Parental Rights Agreement. If the mother refuses to sign such an agreement the
father still has the right to apply for a Court order.

If an application to court is made by the father the court’s decision will be made with regard to the best interests
of the child and not on those of the adults. The test that needs to be met is “Is it necessary for the father to have
these rights and responsibilities?” For example, the mother may have taken very ill and not in a position to make

any decisions about her child.

The court will also consider degree of commitment previously shown by the father to his child. They will also look
at the degree of attachment between the parent and child. Another relevant factor is why the father is making the
application. What is the motivation behind the application? The reasons why the mother has refused to consent

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