Children (Scotland) Act 1995

Part I — Parents, Children and Guardians

Parental responsibilities and parental rights

Duty of adoption agency to consider alternatives to adoption.

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• (1) Subject to section 3(1)(b) , and (d) and (3) of this Act, a parent has in relation to his child the responsibility—

• (a) to safeguard and promote the child’s health, development and welfare;

• (b) to provide, in a manner appropriate to the stage of development of the child—

• (i) direction;

• (ii) guidance,

to the child;

• (c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

• (d) to act as the child’s legal representative,

but only in so far as compliance with this section is practicable and in the interests of the child.

• (2) “Child” means for the purposes of—

• (a) paragraphs (a), (b)(i), (c) and (d) of subsection (1) above, a person under the age of sixteen years;

• (b) paragraph (b)(ii) of that subsection, a person under the age of eighteen years.

• (3) The responsibilities mentioned in paragraphs (a) to (d) of subsection (1) above are in this Act referred to as “parental responsibilities”; and the child, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those responsibilities.

• (4) The parental responsibilities supersede any analogous duties imposed on a parent at common law; but this section is without prejudice to any other duty so imposed on him or to any duty imposed on him by, under or by virtue of any other provision of this Act or of any other enactment.

Parental rights

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• (1) Subject to section 3(1)(b) , and (d) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right—

• (a) to have the child living with him or otherwise to regulate the child’s residence;

• (b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;

• (c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

• (d) to act as the child’s legal representative.

• (2) Subject to subsection (3) below, where two or more persons have a parental right as respects a child, each of them may exercise that right without the consent of the other or, as the case may be, of any of the others, unless any decree or deed conferring the right, or regulating its exercise, otherwise provides.

• (3) Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in subsection (6) below.

• (4) The rights mentioned in paragraphs (a) to (d) of subsection (1) above are in this Act referred to as “parental rights”; and a parent, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those rights.

• (5) The parental rights supersede any analogous rights enjoyed by a parent at common law; but this section is without prejudice to any other right so enjoyed by him or to any right enjoyed by him by, under or by virtue of any other provision of this Act or of any other enactment.

• (6) The description of a person referred to in subsection (3) above is a person (whether or not a parent of the child) who for the time being has and is exercising in relation to him a right mentioned in paragraph (a) or (c) of subsection (1) above; except that, where both the child’s parents are persons so described, the consent required for his removal or retention shall be that of them both.

• (7) In this section, “child” means a person under the age of sixteen years.

Provisions relating both to parental responsibilities and to parental rights

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• (1) Notwithstanding section 1(1) of the Law Reform (Parent and Child) (Scotland) Act 1986 (provision for disregarding whether a person’s parents are not, or have not been, married to one another in establishing the legal relationship between him and any other person)—

• (a) a child’s mother has parental responsibilities and parental rights in relation to him whether or not she is or has been married to or in a civil partnership with his father; and

• (b) without prejudice to any arrangements which may be made under subsection (5) below and subject to any agreement which may be made under section 4 of this Act, his father has such responsibilities and rights in relation to him only if

• (i) married to or in a civil partnership with the mother at the time of the child’s conception or subsequently, or

• (ii) where not married to or in a civil partnership with the mother at that time or subsequently, the father is registered as the child's father under any of the enactments mentioned in subsection (1A).

• (c) without prejudice to any arrangements which may be made under subsection (5) below, where a child has a parent by virtue of section 42 of the Human Fertilisation and Embryology Act 2008, that parent has parental responsibilities and parental rights in relation to the child;

• (d) without prejudice to any arrangements which may be made under subsection (5) below and subject to any agreement which may be made under section 4A(1) of this Act, where a child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008, that parent has parental responsibilities and parental rights in relation to the child if she is registered as a parent of the child under any of the enactments mentioned in subsection (3A).

• (1A) Those enactments are—

• (a) section 18(1)(a), (b)(i) and (c) and (2)(b) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49);

• (b) sections 10(1)(a) to (e) and 10A(1)(a) to (e) of the Births and Deaths Registration Act 1953 (c. 20); and

• (c) article 14(3)(a) to (e) of the Births and Deaths Registration (Northern Ireland) Order 1976 (S.I. 1976/1041).

• (2) For the purposes of subsection (1)(b) above, the father shall be regarded as having been—

• (a) married to the mother at any time when he was a party to a purported marriage with her which was—

• (i) voidable; or

• (ii) void but believed by them (whether by error of fact or law) in good faith at that time to be valid;

• (b) in a civil partnership with the mother at any time when he was a party to a purported civil partnership with her which was—

• (i) voidable; or

• (ii) void but believed by them (whether by error of fact or law) in good faith at that time to be valid.

• (3) Subsection (1) above is without prejudice to any order made under section 11 of this Act or section 3(1) of the said Act of 1986 (provision analogous to the said section 11 but repealed by this Act) or to any other order, disposal or resolution affecting parental responsibilities or parental rights; and nothing in subsection (1) above or in this Part of this Act shall affect any other—

• (a) enactment (including any other provision of this Act or of that Act); or

• (b) rule of law,

by, under or by virtue of which a person may have imposed on him (or be relieved of) parental responsibilities or may be granted (or be deprived of) parental rights.

• (3A) Those enactments are—

• (a) paragraphs (a), (b) and (d) of section 18B(1) and section 18B(3)(a) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965;

• (b) paragraphs (a), (b) and (c) of section 10(1B) and of section 10A(1B) of the Births and Deaths Registration Act 1953;

• (c) sub-paragraphs (a), (b) and (c) of Article 14ZA(3) of the Births and Deaths Registration (Northern Ireland) Order 1976.

• (4) The fact that a person has parental responsibilities or parental rights in relation to a child shall not entitle that person to act in any way which would be incompatible with any court order relating to the child or the child’s property, or with any compulsory supervision order or interim compulsory supervision order (as defined in sections 83 and 86 respectively of the Children’s Hearings (Scotland) Act 2011 (asp 1)) that is in force in relation to the child..

• (5) Without prejudice to sections 4(1) and 4A(1) of this Act, a person who has parental responsibilities or parental rights in relation to a child shall not abdicate those responsibilities or rights to anyone else but may arrange for some or all of them to be fulfilled or exercised on his behalf; and without prejudice to that generality any such arrangement may be made with a person who already has parental responsibilities or parental rights in relation to the child concerned.

• (6) The making of an arrangement under subsection (5) above shall not affect any liability arising from a failure to fulfil parental responsibilities; and where any arrangements so made are such that the child is a foster child for the purposes of the Foster Children (Scotland) Act 1984, those arrangements are subject to the provisions of that Act.

Acquisition of parental rights and responsibilities by natural father

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• (1) Where a child’s mother has not been deprived of some or all of the parental responsibilities and parental rights in relation to him and, by virtue of subsection (1)(b) of section 3 of this Act, his father has no parental responsibilities or parental rights in relation to him, the father and mother, whatever age they may be, may by agreement provide that, as from the appropriate date, the father shall have the parental responsibilities and parental rights which (in the absence of any order under section 11 of this Act affecting those responsibilities and rights) he would have if married to the mother.

• (2) No agreement under subsection (1) above shall have effect unless—

• (a) in a form prescribed by the Secretary of State; and

• (b) registered in the Books of Council and Session while the mother still has the parental responsibilities and parental rights which she had when the agreement was made.

• (3) The date on which such registration as is mentioned in subsection (2)(b) above takes place shall be the “appropriate date” for the purposes of subsection (1) above.

• (4) An agreement which has effect by virtue of subsection (2) above shall, subject only to section 11(11) of this Act, be irrevocable.

Care or control of child by person without parental responsibilities or parental rights

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• (1) Subject to subsection (2) below, it shall be the responsibility of a person who has attained the age of sixteen years and who has care or control of a child under that age, but in relation to him either has no parental responsibilities or parental rights or does not have the parental responsibility mentioned in section 1(1)(a) of this Act, to do what is reasonable in all the circumstances to safeguard the child’s health, development and welfare; and in fulfilling his responsibility under this section the person may in particular, even though he does not have the parental right mentioned in section 2(1)(d) of this Act, give consent to any surgical, medical or dental treatment or procedure where—

• (a) the child is not able to give such consent on his own behalf; and

• (b) it is not within the knowledge of the person that a parent of the child would refuse to give the consent in question.

• (2) Nothing in this section shall apply to a person in so far as he has care or control of a child in a school (“school” having the meaning given by section 135(1) of the Education (Scotland) Act 1980).

Views of children

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• (1) A person shall comply with subsections (1A) and (1D), in reaching any major decision which involves—

• (a) his fulfilling a parental responsibility or the responsibility mentioned in section 5(1) of this Act; or

• (b) his exercising a parental right or giving consent by virtue of that section

....

• (1A) The person must—

• (a) give the child an opportunity to express the child's views in—

• (i) the manner that the child prefers, or

• (ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child's preference, and

• (b) have regard to any views expressed by the child, taking into account the child's age and maturity.

• (1B) But the person is not required to comply with subsection (1A) if the person is satisfied that—

• (a) the child is not capable of forming a view, or

• (b) the location of the child is not known.

• (1C) In considering whether the child is capable of forming a view, the person is to start with the presumption that the child is.

• (1D) The person must, so far as is practicable, have regard to the views of any other person who has parental responsibilities or parental rights in relation to the child.

• (2) A transaction entered into in good faith by a third party and a person acting as legal representative of a child shall not be challengeable on the ground only that the child, or a person with parental responsibilities or parental rights in relation to the child, was not consulted or that due regard was not given to his views before the transaction was entered into.

Guardianship

Appointment of guardians

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• (1) A child’s parent may appoint a person to be guardian of the child in the event of the parent’s death; but—

• (a) such appointment shall be of no effect unless—

• (i) in writing and signed by the parent; and

• (ii) the parent, at the time of death, was entitled to act as legal representative of the child (or would have been so entitled if he had survived until after the birth of the child); and

• (b) any parental responsibilities or parental rights (or the right to appoint a further guardian under this section) which a surviving parent has in relation to the child shall subsist with those which, by, under or by virtue of this Part of this Act, the appointee so has.

• (2) A guardian of a child may appoint a person to take his place as guardian in the event of the guardian’s death; but such appointment shall be of no effect unless in writing and signed by the person making it.

• (3) An appointment as guardian shall not take effect until accepted, either expressly or impliedly by acts which are not consistent with any other intention.

• (4) If two or more persons are appointed as guardians, any one or more of them shall, unless the appointment expressly provides otherwise, be entitled to accept office even if both or all of them do not accept office.

• (5) Subject to any order under section 11 or 86 of this Act, a person appointed as a child’s guardian under this section shall have, in respect of the child, the responsibilities imposed, and the rights conferred, on a parent by sections 1 and 2 of this Act respectively; and sections 1 and 2 of this Act shall apply in relation to a guardian as they apply in relation to a parent.

• (6) Without prejudice to the generality of subsection (1) of section 6 of this Act, a decision as to the appointment of a guardian under subsection (1) or (2) above shall be regarded for the purposes of that section (or of that section as applied by subsection (5) above) as a major decision which involves exercising a parental right.

Revocation and other termination of appointment

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• (1) An appointment made under section 7(1) or (2) of this Act revokes an earlier such appointment (including one made in an unrevoked will or codicil) made by the same person in respect of the same child, unless it is clear (whether as a result of an express provision in the later appointment or by any necessary implication) that the purpose of the later appointment is to appoint an additional guardian.

• (2) Subject to subsections (3) and (4) below, the revocation of an appointment made under section 7(1) or (2) of this Act (including one made in an unrevoked will or codicil) shall not take effect unless the revocation is in writing and is signed by the person making the revocation.

• (3) An appointment under section 7(1) or (2) of this Act (other than one made in a will or codicil) is revoked if, with the intention of revoking the appointment, the person who made it—

• (a) destroys the document by which it was made; or

• (b) has some other person destroy that document in his presence.

• (4) For the avoidance of doubt, an appointment made under section 7(1) or (2) of this Act in a will or codicil is revoked if the will or codicil is revoked.

• (5) Once an appointment of a guardian has taken effect under section 7 of this Act, then, unless the terms of the appointment provide for earlier termination, it shall terminate only by virtue of—

• (a) the child concerned attaining the age of eighteen years;

• (b) the death of the child or the guardian; or

• (c) the termination of the appointment by a court order under section 11 of this Act.

Administration of child’s property

Safeguarding of child’s property

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• (1) Subject to section 13 of this Act, this section applies where—

• (a) property is owned by or due to a child;

• (b) the property is held by a person other than a parent or guardian of the child; and

• (c) but for this section, the property would be required to be transferred to a parent having parental responsibilities in relation to the child or to a guardian for administration by that parent or guardian on behalf of the child.

• (2) Subject to subsection (4) below, where this section applies and the person holding the property is an executor or trustee, then—

• (a) if the value of the property exceeds £20,000, he shall; or

• (b) if that value is not less than £5,000 and does not exceed £20,000, he may,

apply to the Accountant of Court for a direction as to the administration of the property.