Where there are contentious issues arising in respect of parental rights and responsibilities, administration of a child’s property, or, in respect of guardianship matters, these may be considered and regulated by the court by means of a specific issue order. Often these are brought to resolve issues concerning education, religion, consent for medical procedures or perhaps the question of the child emigrating with the resident parent. The court may make such an order where the child is below 18.
The court will have regard to the welfare of the child as its paramount consideration and will operate on the “no order principle”. That is, it is bound not to make any order unless it is satisfied that it is better to make an order than that none should be made. Such orders will deprive a person of his parental responsibilities and rights only in so far as it is necessary to give effect to the order. That is, a person is not deprived of his existing parental rights, he is bound only not to act in any way which is incompatible with the order. Any person with parental responsibilities and rights may seek a specific issue order, but it is also open to anyone who claims an interest in the child to seek such an order. Examples include siblings, other relatives or medical practitioners. The child himself may seek an order to remove a parent from decision making on a specific matter so long as he has legal capacity. Local authorities are unable however to seek such an order. Their powers are covered specifically in Part 2 of the Children (Scotland) Act 1995.
A child’s mother, regardless of her age automatically has parental rights and responsibilities in relation to her child, whether or not she has ever been married to the child’s father.
The child’s father automatically obtains parental rights and responsibilities if he was married to the mother at the date of conception and birth or, after the date of conception but before the birth. In these cases the law creates a presumption that he is the father.
In the event that the male marries the mother after the birth, he is not presumed to be the father, but, if paternity is established, he automatically acquires parental rights and responsibilities at the time of his marriage.
Under the Family Law (Scotland) Act 2006, where parents are not married, the father automatically obtains parental rights and responsibilities if he is registered as the father on the child’s birth certificate. This applies to all registrations after 4th May 2006.
Where the father is not registered on the child’s birth certificate, he can obtain parental rights and responsibilities by agreement with the child’s mother, so long as she has not been deprived of her parental rights and responsibilities at the time of the agreement. The agreement should stipulate the date on which the father is to obtain rights and responsibilities. The Children (Scotland) Act 1995 determines that this type of agreement is valid regardless of the age of either parent, even if they are under 16.
The agreement only becomes binding if it is in the prescribed form and is registered in the Books of Council and Session. Once registered, the agreement is irrevocable except by order of the court.
In the absence of either of the above, the father can seek a s11 order from the court. He has title to sue as a person who “not having, and never having had, parental responsibilities and rights in relation to the child, claims an interest”. His genetic and emotional ties will constitute an interest.
The same principles apply here as for all s11 orders. The welfare of the child is paramount and the court will not make an order unless satisfied that intervention is necessary.
Other interested parties may also seek a s11 order, specifically under s11(3)(a)(i) of the Children (Scotland) Act 1995. Grandparents’ interest would be satisfied by their genetic and emotional ties. Non relatives e.g. a doctor seeking the right to consent to a medical procedure on behalf of a child where parents are refusing to consent, may also use this vehicle.
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