Law Reform (Parent and Child) (Scotland) Act 1986

Legal equality of children

1

• (1) No person whose status is governed by Scots law shall be illegitimate; and accordingly the fact that a person's parents are not or have not been married to each other shall be left out of account in—

• (a) determining the person's legal status; or

• (b) establishing the legal relationship between the person and any other person.

• (2) ... Any reference (however expressed) in any enactment or deed to any relative shall, unless the contrary intention appears in the enactment or deed, be construed in accordance with subsection (1) above.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) Nothing in this section shall apply to the construction or effect of—

• (a) any enactment passed or made before the commencement of section 21 of the Family Law (Scotland) Act 2006 (asp 2) ;

• (b) any deed executed before such commencement;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) In subsection (4), “ enactment ” includes an Act of the Scottish Parliament.

• (6) It shall no longer be competent to bring an action for declarator of legitimacy, legitimation or illegitimacy.

Parental rights and their exercise

2

Orders as to parental rights

3

Power of parent to appoint tutor or curator

4

Presumptions

5

• (1) A man shall be presumed to be the father of a child—

• (a) if he was married to the mother of the child at any time in the period beginning with the conception and ending with the birth of the child;

• (b) where paragraph (a) above does not apply, if both he and the mother of the child have acknowledged that he is the father and he has been registered as such in any register kept under section 13 (register of births and still-births) or section 44 (register of corrections, etc.) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 or in any corresponding register kept under statutory authority in any part of the United Kingdom other than Scotland.

• (2) Subsection (1)(a) above shall apply in the case of a void, voidable or irregular marriage as it applies in the case of a valid and regular marriage.

• (3) Without prejudice to the effect under any rule of law which a decree of declarator in an action to which section 7 of this Act applies may have in relation to the parties, a decree of declarator in such an action shall give rise to a presumption to the same effect as the decree; and any such presumption shall displace any contrary presumption howsoever arising.

• (4) Any presumption under this section may be rebutted by proof on a balance of probabilities.

Determination of parentage by blood sample

6

• (1) This section applies where, for the purpose of obtaining evidence relating to the determination of parentage in civil proceedings, a sample of blood or other body fluid or of body tissue is sought by a party to the proceedings or by a curator ad litem.

• (2) Where such a sample is sought from a child under the age of 16 years, consent to the taking of the sample may be given by his any person having parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to him or havingcare and control of him.

• (3) Where such a sample is sought from any person who is incapable of giving consent, the court may consent to the taking of the sample where—

• (a) there is no person who is entitled to give such consent, or

• (b) there is such a person, but it is not reasonably practicable to obtain his consent in the circumstances, or he is unwilling to accept the responsibility of giving or withholding consent.

• (4) The court shall not consent under subsection (3) above to the taking of such a sample from any person unless the court is satisfied that the taking of the sample would not be detrimental to the person’s health.

Actions for declarator

7

• (1) An action for declarator of parentage, or non-parentage may be brought in the Court of Session or the sheriff court.

• (2) Such an action may be brought in the Court of Session if and only if the child was born in Scotland or the alleged or presumed parent or the child—

• (a) is domiciled in Scotland on the date when the action is brought;

• (b) was habitually resident in Scotland for not less than one year immediately preceding that date; or

• (c) died before that date and either—

• (i) was at the date of death domiciled in Scotland; or

• (ii) had been habitually resident in Scotland for not less than one year immediately preceding the date of death.

• (3) Such an action may be brought in the sheriff court if and only if—

• (a) the child was born in the sheriffdom, or

• (b) an action could have been brought in the Court of Session under subsection (2) above and the alleged or presumed parent or the child was habitually resident in the sheriffdom on the date when the action is brought or on the date of his death.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) Nothing in any rule of law or enactment shall prevent the court making in any proceedings an incidental finding as to parentage, or non-parentage for the purposes of those proceedings.

• (6) In this section “the alleged or presumed parent” includes a person who claims or is alleged to be or not to be the parent.

Interpretation

8

In this Act, unless the context otherwise requires, the following expressions shall have the following meanings respectively assigned to them—

• “action for declarator” includes an application for declarator contained in other proceedings but does not include an appeal under section 20 (Appeals) of the Child Support Act 1991 made to the court by virtue of an order made under section 45 (jurisdictions of courts in certain proceedings) of that Actbut does not include an appeal under section 20(1)(a) or (b) (Appeals) of the Child Support Act 1991 made to the court by virtue of an order made under section 45 (jurisdiction of the courts in certain proceedings) of that Act:;

• . . .

• “the court” means the Court of Session or the sheriff;

• . . .

• “deed” means any disposition, contract, instrument or writing whether inter vivos or mortis causa;

• “non-parentage” means that a person is not or was not the parent, or is not or was not the child, of another person;

• “parent” includes natural parent;

• “parentage” means that a person is or was the parent, or is or was the child, of another person;

• . . .

• . . .

Savings and supplementary provisions

9

• (1) Nothing in this Act shall—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) subject to subsection (1A) below, except to the extent that Schedules 1 and 2 to this Act otherwise provide, affect the law relating to adoption of children;

• (c) apply to any title, coat of arms, honour or dignity transmissible on the death of the holder thereof or affect the succession thereto or the devolution thereof (including, in particular, the competence of bringing an action of declarator of legitimacy, legitimation or illegitimacy in connection with such succession or devolution) ;

• (ca) affect the functions of the Lord Lyon King of Arms so far as relating to the granting of arms;

• (d) affect the right of legitim out of, or the right of succession to, the estate of any person who died before the commencement of this Act.

• (1A) Subsections (1) and (2) of section 1 of this Act shall apply in relation to adopted children.

• (2) The court may at any time vary or recall any order made under section 3 of this Act or consent given by it under section 6 of this Act.

Transitional provisions, amendments and repeals

10

• (1) The enactments specified in Schedule 1 to this Act shall have effect subject to the amendments set out in that Schedule.

• (2) The enactments specified in Schedule 2 to this Act are hereby repealed to the extent set out in the third column of that Schedule.

Citation, commencement and extent

11

• (1) This Act may be cited as the Law Reform (Parent and Child) (Scotland) Act 1986.

• (2) This Act shall come into operation on such day as the Secretary of State may appoint by order made by statutory instrument.

• (3) An order under subsection (2) above may contain such transitional provisions and savings as appear to the Secretary of State necessary or expedient in connection with the coming into operation of this Act.

• (4) This Act shall extend to Scotland only.

SCHEDULE 1

The Judicial Factors Act 1849 (c. 51)

1

In section 25 (application to certain tutors and curators) at the end there shall be inserted the following new subsection—

(2) Any person being an administrator-in-law, tutor-nominate, guardian appointed or acting under the Guardianship of Infants Acts 1886 and 1925 or tutor appointed under the Law Reform (Parent and Child) (Scotland) Act 1986 who shall, by virtue of his office, administer the estate of any pupil, shall be deemed to be a tutor within the meaning of this Act and shall be subject to the provisions thereof, but any such person shall not be bound to find caution in terms of sections 26 and 27 of this Act unless the court, on the application of any party having an interest, shall so direct.

The Conjugal Rights (Scotland) Amendment Act 1861 (c. 86)

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Sheriff Courts (Scotland) Act 1907 (c. 51)

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Trusts (Scotland) Act 1921 (c. 58)

4

In section 2 (definitions), in the definition of “trustee”, after the word “tutor” there shall be inserted the words “ (including a father or mother acting as tutor of a pupil) ”.

The National Assistance Act 1948 (c. 29)

5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Matrimonial Proceedings (Children) Act 1958 (c. 40)

6

In section 9(1) (jurisdiction of court as respects children where action dismissed), for the words from “with respect” to “that child” there shall be substituted the words “ relating to parental rights as could be made ”.

The Succession (Scotland) Act 1964 (c. 41)

7

• (1) In section 33(1) (construction of existing deeds), for the words “deed taking effect after the commencement of this Act”, where those words second occur, there shall be substituted the words “ such deed ”.

• (2) In section 36 (interpretation), at the end there shall be added the following subsection—

(5) Section 1(1) (legal equality of children) of the Law Reform (Parent and Child) (Scotland) Act 1986 shall apply to this Act ; and any reference (however expressed) in this Act to a relative shall be construed accordingly.

.

The Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49)

8

• (1) In section 14 (duty to give information of particulars of birth), at the end there shall be added the following subsection—

(5) In this section, any reference to the father or parent of the child shall not include a reference to a father who is not married to the mother and has not been married to her since the child’s conception.

• (2) In section 18 (births of illegitimate children), for subsection (1), there shall be substituted the following subsections—

(18) (1) No person who is not married to the mother of a child and has not been married to her since the child’s conception shall be required, as father of the child, to give information concerning the birth of the child and, save as provided in section 20 of this Act, the registrar shall not enter in the register the name and surname of any such person as father of the child except— (a) at the joint request of the mother and the person acknowledging himself to be the father of the child (in which case that person shall sign the register together with the mother); or (b) at the request of the mother— (i) on the production of— (aa) a declaration in the prescribed form made by the mother stating that that person is the father of the child; and (bb) a statutory declaration made by that person acknowledging himself to be the father of the child; or (ii) on production of a decree by a competent court finding or declaring that person to be the father of the child; or (c) at the request of that person on production of— (i) a declaration in the prescribed form by that person acknowledging himself to be the father of the child; and (ii) a statutory declaration made by the mother stating that that person is the father of the child. (1A) Where a person acknowledging himself to be the father of a child makes a request to the registrar in accordance with paragraph (c) of subsection (1) of this section, he shall be treated as a qualified informant concerning the birth of the child for the purposes of this Act; and the giving of information concerning the birth of the child by that person and the signing of the register by him in the presence of the registrar shall act as a discharge of any duty of any other qualified informant under section 14 of this Act.

• (3) In section 18, in subsection (2)—

• (a) for the words “an illegitimate” there shall be substituted the word “ a ”,

• (b) in paragraph (b) for heads (i) and (ii) there shall be substituted the words “ a declaration and a statutory declaration such as are mentioned in paragraph (b) or (c) of subsection (1) of this section ”, and

• (c) in paragraph (c) for the word “dead” there shall be substituted the words “ dead or cannot be found or is incapable of making a request under subsection (1)(b) of this section, or a declaration under subsection (1)(b)(i)(aa) of this section, or a statutory declaration under subsection (1)(c)(ii) of this section ”, and the words “within the like period” shall be omitted.

• (4) After section 18 there shall be inserted the following section—

(18A) (1) Where a decree of parentage or non-parentage has been granted by any court the clerk of court shall— (a) where no appeal has been made against such decree, on the expiration of the time within which such an appeal may be made, or (b) where an appeal has been made against such a decree, on the conclusion of any appellate proceedings, notify the import of such decree in the prescribed form to the Registrar General. (2) Where it appears to the Registrar General that the import of a decree notified to him under subsection (1) above does not correspond with the entry in the register of births in respect of any person to whom the decree relates he shall cause an appropriate entry to be made in the Register of Corrections Etc.

.

• (5) In section 20 (re-registration in certain cases)—

• (a) in subsection (1)(a), for the words “or paternity” there shall be substituted the words “ , parentage or non-parentage ”; and

• (b) in subsection (1)(c), for the words from “having been” to the end of paragraph (c) there shall be substituted the words “ has been so made as to imply that his parents were not then married to one another and his parents have subsequently married one another ”.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) In section 43(3) (recording of baptismal name or change of name or surname), for the words from “in the case” to “the mother is” there shall be substituted the words “ if both parents are ”.

• (8) In section 43, at the end there shall be added the following subsection—

In this section, “father” and “parent”, in relation to a child, do not include a father who is not married to the mother and has not been married to her since the child’s conception and who is not the child’s tutor or curator and is not entitled to custody of the child.

• (9) In section 56 (interpretation), in subsection (1), there shall be inserted (in their appropriate alphabetical place) the following definitions—

• “guardian” includes tutor or curator;
• “parentage” has the meaning assigned to it in section 8 of the Law Reform (Parent and Child) (Scotland) Act 1986, and “non-parentage” shall be construed accordingly;
• “tutor or curator” does not include tutor ad litem, curator ad litem or curator bonis.

.

• (10) In section 56, at the end there shall be added the following subsection—

(3) Section 1(1) (legal equality of children) of the Law Reform (Parent and Child) (Scotland) Act 1986 shall apply to this Act; and any reference (however expressed) in this Act to a relative shall, unless the contrary intention appears, be construed accordingly.

The Social Work (Scotland) Act 1968 (c. 49)

9

• (1) In section 16(11) (assumption of parental rights by local authority), for paragraph (c) there shall be substituted—

(c) a tutor or curator to the child is appointed under the Law Reform (Parent and Child) (Scotland) Act 1986; or

.

• (2) In section 18(4) (duration and recission of resolutions under section 16), for the words from “section” to “1925” there shall be substituted the words “ the Law Reform (Parent and Child) (Scotland) Act 1986 ” . . .

• (3) In section 81(2) (decrees for aliment)—

• (a) for the words from the beginning to “in force” there shall be substituted the words “ Where a decree for aliment of a maintainable child is in force ”,

• (b) for the word “father” there shall be substituted the words “ person liable under the decree ”, and

• (c) the words “for aliment” where those words second occur shall be omitted.

• (4) In section 81(4)(b), for the words “father of a child” there shall be substituted the words “ person liable to pay aliment for a child under a decree ”, and for the words “the father” where those words second occur there shall be substituted the words “ that person ”.

• (5) In section 88(3) (duty of parents to notify change of address), for the word “father” there shall be substituted the word “ person ”.