Part 1 of the Children (Scotland) Act 1995: review

Part 7: Parental Responsibilities and Rights

Introduction

7.01 We are seeking your views in this section on a number of topics in relation to who should have PRRs, the terms that are used, whether children benefit from both parents being involved in their upbringing and the role of non-resident parents who have PRRs. In considering whether any legislative changes are needed, our view is that any such changes must benefit children and must, of course, be compatible with ECHR.

7.02 The specific areas where we are seeking your views are on:

• Establishing a Step Parents Parental Responsibilities and Rights Agreement;
• Changing terminology of PRRs;
• Changing the terms contact and residence;
• Automatic PRRs for all fathers;
• Backdating of joint birth registration and PRRs;
• Making joint birth registration compulsory;
• Recognising joint registration of births overseas;
• Introducing a presumption that a child benefits from both parents being involved in their life: shared parenting;
• Introducing primary legislation laying down that courts should not presume that a child benefits from both parents being involved in their life;
• Encouraging involvement of non-resident parent in education decisions/provision of information to non-resident parent about their children’s learning;
• Encouraging involvement of non-resident parent in health decisions;
• Clarifying that not all section 11 orders grant PRRs;
• Reducing occurrences of a parent turning a child against another parent; and
• Removing PRRs if a parent is found guilty of a serious criminal offence.

Background

What are PRRs?

7.03 Section 1 of the 1995 Act provides that so long as this is practicable and in the interests of the child, parents have the responsibility to:

• Safeguard and promote the child’s health, development and welfare;
• Provide direction and guidance to the child;
• Maintain personal relationships and direct contact with the child on a regular basis if a child is not living with their parent; and
• Act as the child’s legal representative.

7.04 In order to meet their responsibilities towards their children, parents have the right to:

• Have the child living with them or otherwise regulate the child’s residence;
• Control, direct or guide the child’s upbringing;
• Maintain personal relations and direct contact with the child on a regular basis if a child is not living with their parent; and
• Act as the child’s legal representative.

7.05 When exercising a responsibility or right, a person who has PRRs must under section 6 of the 1995 Act so far as practicable take account of the views of the child concerned based on their age and maturity.

Who has PRRs?

7.06 The provisions in section 1 of the 1995 Act are subject to section 3 of the same Act which lays down when a mother or father has PRRs.

7.07 All mothers automatically get PRRs for their child. However, not all fathers get PRRs. A man gets PRRs if they are married to the mother at the time of the child’s conception or subsequently.

7.08 If a man is not married to the mother, then the man can obtain PRRs by:

• Jointly registering the birth with the mother; or
• Completing and registering a Parental Responsibilities and Rights agreement ^[52] with the mother; or
• Obtaining a court order.

7.09 In relation to same sex parents, the child’s mother receives PRRs as does any second female parent if:

• She was married or in a civil partnership with the mother at the time of the insemination/fertility treatment; or
• She is named as the other parent on the child’s birth certificate; or
• She completes and registers a Parental Responsibilities and Rights agreement ^[53] with the mother.

7.10 There are also specific provisions on PRRs in relation to adoption cases. Prospective adopters can petition the Court of Session or the Sherriff Court to adopt a particular child. Those who hold PRRs must consent to the adoption or the Court may dispense with the necessity for consent. This will be where the parent is dead, cannot be found, is incapable of consenting or cannot in the court’s opinion satisfactorily discharge their PRRs and are likely to continue to be unable to do so. The court may also dispense with the consent where the child’s welfare otherwise requires it.

7.11 Where a child is 12 years of age or over, their consent must be sought before the adoption can be granted. The child would need to be considered incapable of giving consent for the adoption to be otherwise granted. Once the adoption order is granted, the child will be as though born into the adoptive family.

Court orders

7.12 The Court of Session and Sheriff Court may make a variety of orders under section 11 of the 1995 Act. These may:

• Deprive a person of some or all of their PRRs;
• Give a person over 16 (or a parent) PRRs;
• Regulate the arrangements as to with whom, or if with different persons alternately or periodically, with whom, during what periods, a child under 16 is to live (a residence order);
• Regulate the arrangements for maintaining personal relations and direct contact between a child under 16 and a person with whom the child is not, or will not be, living (a contact order);
• Regulate any specific question which has arisen (a specific issues order);
• Be an interdict prohibiting a person with PRRs from exercising a certain right;
• Appoint a judicial factor; or
• Appoint or remove a person as a guardian of the child. [Under section 7 of the 1995 Act, a child’s parent may appoint a person to be guardian of the child in the event of the parent’s death].

7.13 According to the Civil Justice Statistics in Scotland ^[54] in 2015/16, there were 2232 cases in the Sheriff Court in relation to PRRs, of which 1039 were regarding contact with a child, 712 were in relation to who a child lives with and 481 were other cases. In 2015/16, there were eight cases initiated in the Court of Session in relation to PRRs – three of which were in relation to contact and four of which were in relation to residence.

7.14 These statistics relate only to cases where contact is listed as the principal crave (The first legal remedy requested by the pursuer / petitioner, as stated in the initial writ / summons, etc). Therefore, the actual caseload is likely to be higher. Annex F to this consultation outlines proposals for improving statistics and evidence base in relation to family cases to be included in the forthcoming Family Justice Modernisation Strategy.

7.15 Data from SLAB indicates that they provided legal aid funding for 1986 contact cases in 2016/17 and 1160 cases in relation to residence.

Establishing a Step Parents Parental Responsibilities and Rights Agreement

Background

7.16 We are seeking your views on whether to introduce a step parents parental responsibilities and rights agreement so that step parents could obtain PRRs without having to go to court.

7.17 Figures from the 2011 census show that step families made up:

• 8% (26,000) of married couple families and 29% (26,000) of cohabiting couple families;
• 8% of families with one dependent, 6% of families with two dependent children and 12% of families with three or more dependent children; and
• Just over half of the 15,000 cohabiting couple families where the youngest dependent child was aged 12 or over ^[55] .

7.18 There is provision in England and Wales which allows step parents to obtain parental responsibilities by agreement with the parent or both parents if both have parental responsibilities. This is provided for in section 4A of the Children Act 1989.

7.19 The then Scottish Executive considered establishing a step parents PRRs agreement in 2004 as part of a consultation on Improving Family Law in Scotland. The results from that consultation were that 54% of respondents were in favour of introducing a responsibilities and rights agreement for step parents and 42% were against ^[56] . However, as a number of consultees did express serious reservations about how to safeguard children’s views and interests this was not taken forward.

7.20 If a step parents parental responsibilities and rights agreement should be established in Scotland, it could be registered in the Books of Council and Session operated by Registers of Scotland. There would be a fee charged for registering an agreement in the Books of Council and Session.

Pros/Cons

7.21 There are a number of pros and cons of establishing a PRRs agreement for step parents. Arguments in favour are:

• A PRRs agreement for step parents could reduce the number of court cases where step parents are seeking PRRs; and
• A PRRs agreement for step parents could also enhance the role of the step parent and acknowledge that they might play an important role in the life of the child.

7.22 Arguments against are:

• As consultees indicated previously, the proposal may not take full account of the views of the child on whether the step parent should have PRRs. This goes against the aims of the reforms of the 1995 Act. In a court case, the court is required to consider the welfare of a child and consider the views of a child, where appropriate;
• A PRRs agreement for step parents could mean both parents as well as a step parent having PRRs which may not be in the best interests of the child;
• We would need to define exactly who would be regarded as “step parents” for the purpose of being eligible to complete and register an agreement; and
• A step parent can already apply to the court to obtain PRRs.

Question 16): Should a step parents parental responsibilities and rights agreement be established so that step parents could obtain PRRs without having to go to court?
Yes
No
Why did you select your answer above?

Changing terminology of PRRs

Background

7.23 As discussed in the introduction to this section, a person has parental rights to enable them to fulfil their parental responsibilities. We are seeking your views on whether to remove the term “rights” and just refer to “responsibilities”.

7.24 In England and Wales, the term “parental responsibility” is used. This covers all the rights, powers and duties which a guardian of a child’s estate would have had in relation to the child and his property.

7.25 The term “parental responsibility” is also used in the Brussels IIa Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. Further information on Brussels IIa is in Annex D of this consultation.

Pros/Cons

7.26 There are advantages and disadvantages of removing the term “right”. The main advantage is that this would be in line with our policy intention of ensuring that the child is at the centre of the process. By emphasising the word “responsibilities”, we would be making it clear that people have these duties for the benefit of the child.

7.27 However, any change would have significant implications for other pieces of legislation in relation to children and young people in Scotland. In addition, the change is semantic rather than a change of substance. In some cases, the use of the word “right” may help parents and others when dealing with an arm of the state, such as social work.

Question 17): Should the term “parental rights” be removed from the 1995 Act?
Yes
No
Why did you select your answer above?

Changing terms “contact” and “residence”

Background

7.28 The 1995 Act uses the terms “contact” and “residence” to describe two of the types of orders that a court may make. We have received comments that the terms could suggest that one parent has a better position in relation to a child than the other parent. We are therefore seeking views on whether to replace the terms “contact” and “residence”. A possible alternative in Scotland might be “child’s order.”

7.29 In England and Wales, the terms “contact” and “residence” were replaced in 2014 with the term “Child Arrangements Order”. The reason for this was to encourage parents to focus on their child’s needs rather than their own rights. In New Zealand and Australia, the term “parenting order” is used.

Pros/Cons

7.30 The replacement of the terms “contact” and “residence” may be in line with our policy intention of ensuring that the child is at the centre of any court case under section 11 of the 1995 Act. It may also encourage parents to focus on the children’s best interests if the words are changed to be more child centric.

7.31 However, as with the option to remove the term “rights”, it would have significant implications for other pieces of legislation in relation to children and young people in Scotland. In addition, it is not clear that a change of terminology would lead to a change in practice.

7.32 Finally, in paragraphs 4.34-4.42 and paragraphs 7.102 -7.107 we have discussed the potential need to amend section 11 of the 1995 Act to make it clear that when the court makes a contact order, it does not necessarily have to award PRRs as well. Moving away from the terms “contact” and “residence” might cut across this proposal.

Question 18): Should the terms “contact” and “residence” be replaced by a new term such as “child’s order”?
Yes
No
Why did you select your answer above?
If you answered yes what terms should be used?

PRRs for all fathers

Background

7.33 We are seeking your views on whether all fathers should automatically have PRRs in the same way as mothers without having to go through a court process. It is unlikely this could be retrospective. Instead, it could apply in relation to births in Scotland from a specific date in the future.

7.34 PRRs for all fathers was recommended by the SLC in their report on Family Law in 1992 ^[57] . Amongst other points, the SLC argued at the time that:

• An unmarried father may be just as motivated to care for and protect his child as a married father, or indeed the mother of the child;
• PRRs are conferred not for the benefit of the parents but for the benefit of the child;
• The answer to parental involvement which is against the child’s welfare is for a court to remove or regulate parental rights; and
• Article 9(3) of the UNCRC obliges States Parties to respect the child’s right to contact with both parents. Article 18(1) of the UNCRC obliges States Parties to use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.

7.35 This recommendation by the SLC was not implemented. The 2006 Act made provision so that unmarried fathers could obtain PRRs by jointly registering the birth of the child with the mother.

7.36 In relation to the proposal that all fathers should obtain PRRs, the Policy Memorandum prepared by the then Scottish Executive for the Bill which led to the 2006 Act said in paragraph 47:

“The Scottish Ministers consider that this approach would not be appropriate. It would not be fair if women who had suffered trauma such as rape, or had become pregnant as a result of a casual liaison then had to go to court to have PRRs removed from the father. Scottish Ministers believe that some evidence of commitment to joint parenting such as the joint registration of the child’s birth should be required before a man gains PRRs.” ^[58]

7.37 NRS publish statistics on live births, numbers and percentages, by marital status and type of registration ^[59] .These statistics show that in recent years the sole registration rate has been in slow decline and in 2016 was 4.3%. In 2016, out of 54,488 live births there were 2,321 cases of sole registration suggesting that 2,321 fathers did not receive PRRs automatically.

7.38 We warmly welcome the work of registrars across Scotland who work with parents and provide them with valuable information when parents are registering the birth of their child.

Pros/Cons

7.39 All fathers having PRRs automatically has a number of potential advantages. Research has shown that a child may benefit from their father being involved in their upbringing. For example, the Scottish Government’s Growing Up in Scotland study on father-child relationships and child socio-emotional wellbeing found that children with poor father-child relationships are more likely to have higher levels of behavioural and emotional problems and poor school adjustment than children with good father-child relationships ^[60] .

7.40 All fathers having PRRs automatically may also encourage more fathers to be involved in their child’s upbringing and may reflect societal trends about fathers becoming more involved in parenting.

7.41 All fathers having PRRs automatically might reduce the number of court cases where fathers are seeking PRRs.

7.42 Against that, however, there might be an increase in the number of court actions raised by women seeking orders to have PRRs removed.

7.43 There are also potential disadvantages to all fathers having PRRs automatically. Some children may be born following sexual assault (although as the SLC noted in 1992, rape can occur in marriage and rapist fathers in these circumstances would obtain PRRs).

7.44 In addition, figures from the Scottish Government’s Domestic Abuse Recorded by the Police in Scotland 2016-17 statistics ^[61] show that 79% of victims of domestic abuse reported to the Police were women and abusers were men. Some fathers who domestically abused their partners may use the fact they have PRRs to continue the domestic abuse. As domestic abuse can start at any point in a child’s life, and if a father has automatic PRRs, it would be the responsibility of the mother to apply to the court for the PRRs to be revoked. This may cause the mother additional stress.

7.45 There is an argument that, as the then Scottish Executive said at the time, some evidence of commitment to joint parenting such as the joint registration of the child’s birth should be required before a man gains PRRs. It can also be argued that the current law is successful, given that the vast majority of fathers now obtain PRRs automatically.

7.46 There may also be an argument that all fathers having PRRs automatically could lead to disinterested fathers having an adverse effect on a child’s life. For example, where both parents have PRRs, both need to consent to a change in name through NRS’ change of name service. We discuss this further in part 12 of this consultation. We receive occasional correspondence from mothers seeking to change their child’s name and where the father has PRRs but is not in contact. As matters stand, such mothers need to go to court to seek removal of PRRs held by the father. The number of cases of this nature could increase if all fathers have PRRs automatically.

Question 19): Should all fathers be granted PRRs?
Yes
No
Why did you select your answer above?

Joint birth registration and PRRs – backdating

Background

7.47 This consultation seeks your views on whether the provision that fathers can obtain PRRs by jointly registering the birth should be back dated.

7.48 As indicated in paragraph 7.08, the Family Law (Scotland) Act 2006 (the 2006 Act) made provision so that fathers obtain PRRs when they jointly register the birth with the mother. This came into force on 4 May 2006. The provision was not made retrospective. In the Policy Memorandum for the Bill which led to the 2006 Act, the then Scottish Executive said in paragraphs 48 and 49:

“It would also be possible to make the new arrangement retrospective, i.e. apply to unmarried fathers who have already jointly registered a birth. The advantage of this approach would be that automatic PRRs would not depend on an accident of the calendar and fathers would have PRRs for both existing and future children, i.e. they would not be placed in a situation where they have PRRs for one child but not for an older sibling.

The Scottish Ministers do not favour retrospection since the law should be clear, precise and predictable. They consider that it would be inappropriate for parents who had registered the birth of their child on the basis of one set of legal consequences then to find that subsequent legislation had materially changed those legal consequences. In addition, there is a need to protect families whose arrangements had already been settled by courts. It would not be in anyone’s interests to re-open such cases. Although this would mean that children already registered prior to that date would not benefit from the change, it would avoid any interference in both the child’s and the mother’s family life. Fathers who did want to play an active part would be able to acquire PRRs by the existing methods, which involve either the consent of the mother or a decision by the court.”

Pros and cons

7.49 As the then Scottish Executive said at the time, backdating this provision would mean that automatic PRRs would not depend on an accident of the calendar and fathers would have PRRs for both existing and future children, i.e. they would not be placed in a situation where they have PRRs for one child but not for an older sibling.

7.50 However, the then Scottish Executive noted that it would be inappropriate for parents who had registered the birth of their child on the basis of one set of legal consequences then to find that subsequent legislation had materially changed those legal consequences.

7.51 In addition, of course, time has now passed. PRRs apply generally until the child obtains the age of 16. Therefore, from 2022 [ie 16 years from 2006] there will no longer be any fathers who did not receive PRRs by jointly registering the birth. It could be argued, therefore, that the passage of time means that no changes are required.

Question 20): Should the law allowing a father to be given PRRs by jointly registering a birth with the mother be backdated to pre 2006?
Yes
No
Why did you select your answer above?

Compulsory joint birth registration

Background

7.52 As indicated above, since 2006 one of the ways that an unmarried father can obtain PRRs is by jointly registering a child’s birth with the mother. We are seeking your views on whether joint birth registration should be compulsory. In other words, the person registering the birth would be obliged to name both parents.

7.53 The Welfare Reform Act 2009 made amendments to the Births and Deaths Registration Act 1953 to allow for mandatory joint registration of births in England and Wales. However, this has not yet been implemented. Other countries such as New Zealand and Australia have introduced compulsory joint birth registration.

Pros/Cons

7.54 Compulsory joint birth registration offers both advantages and disadvantages. An advantage is that it would reduce the number of court cases where a father is seeking to be named on a child’s birth certificate.

7.55 Naming both parents on the birth register may also promote father /child relationships. Evidence mentioned in paragraphs 7.33-7.46 in the discussion about whether to extend PRRs to all fathers suggests that children benefit from fathers being involved in their upbringing. Naming both parents on the birth certificate could also further compliance with article 7 of the UNCRC which says that:

“the child shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.”

7.56 However, compulsory birth registration could have the drawbacks of leading to perpetrators of domestic abuse or sexual assault being listed on a birth certificate which could give them automatic PRRs. A mother may also not necessarily know who the father of the child is.

7.57 One option to overcome these drawbacks is to have exemptions. In England and Wales, the proposed exemptions are where ^[62] :

• It is impossible to identify who the father is;
• It is impracticable because the whereabouts of the father are unknown or he cannot attend the register office or is unable to sign a statutory declaration of paternity; or
• There are unreasonable circumstances for example in cases of men who have received a conviction for rape or in the case of a vulnerable mother where a social worker or medical practitioner advises it would not be in the mother’s or child’s best interest to register the father. Unreasonable circumstances could also include where it would be unreasonable to expect registrars to take excessive steps to trace a father.

7.58 Consideration would need to be given as to the process if a mother refuses to jointly register a birth. Furthermore, enforcement of compulsory joint birth registration would not be straightforward.

Question 21): Should joint birth registration be compulsory?
Yes
No
Why did you select your answer above?

Joint registration of births overseas

7.59 We are seeking views on whether fathers who jointly register the birth of a child with the mother of the child in a country where joint registration leads to PRRs should have their PRRs recognised in Scotland.

7.60 The 2006 Act made provision so that fathers who jointly register the birth with the mother obtain PRRs. The amendments made by the 2006 Act cover joint birth registration in Scotland, England and Wales and Northern Ireland but not overseas.

7.61 When the Bill leading to the 2006 Act was introduced, it included provision giving the Scottish Ministers the power to make regulations to give parental responsibilities and parental rights to fathers who were never married to the child’s mother and who are not registered as the child’s father in one of the UK jurisdictions. This was intended to be used to recognise PRRs of fathers with children whose births were registered outwith the UK.

7.62 The Scottish Parliament’s Subordinate Legislation Committee noted that the intention of the Bill was to allow for PRRs to be granted to fathers who registered as the child’s father under equivalent legislation in other countries. However, it appeared to the Subordinate Legislation Committee that it would be possible for regulations made under the new power not only to amend the list of enactments for the purposes indicated in the Policy Memorandum, but also to extend PRRs to a father who had not registered anywhere as the father of the child ^[63] .

7.63 Following comments by the Subordinate Legislation Committee, the then Scottish Executive moved an amendment at Stage 2 of the Bill to remove this regulation-making power. This amendment was agreed ^[64] .

7.64 The question now is whether this should be revised. Any new Bill could give the Scottish Ministers a power to make regulations so that registration as a child's father under equivalent overseas legislation listed in Scottish regulations could, when appropriate, also confer PRRs in respect of a child subject to the law of Scotland.

Pros/Cons

7.65 Clearly, this power would not be needed if all fathers automatically receive PRRs as is discussed in paragraphs 7.33-7.46 of this consultation. If that change is not made, the main advantage of this proposed regulation-making power is that unmarried fathers who have obtained PRRs through joint birth registration overseas would continue to be able to do so if they move to Scotland. This is likely to be in the best interests of the child.

7.66 However, arguments against are:

• It may not be straightforward in practical terms to find equivalents overseas to the procedures in Scotland for joint birth registration and to PRRs;
• Any list of countries laid down in regulations made by the Scottish Ministers would need to be reviewed from time to time to reflect any changes in procedures in law by overseas jurisdictions;
• The number of fathers affected is likely to be low; and
• Consideration would need to be given as to whether any change could be retrospective i.e. cover children whose birth is registered before any regulations come into effect.

Question 22): Should fathers who jointly register the birth of a child in a country where joint registration leads to PRRs have their PRRs recognised in Scotland?
Yes
No
Why did you select your answer above?

Courts should presume that a child benefits from both parents being involved in their life: shared parenting

Background

7.67 We are seeking views on whether to legislate to lay down that in contact and residence cases courts should presume that a child benefits from both parents being involved in their life. This presumption would be in line with arguments that children benefit from a shared parenting arrangement.

7.68 Other jurisdictions have introduced legislation that encourages shared parenting. For example, the Family Law Act in British Columbia ^[65] creates a presumption that each parent will exercise “parental responsibilities with respect to the child in consultation with the child’s other parent, unless consultation would be unreasonable or inappropriate in the circumstances.”

7.69 In Belgium, there is a system of joint exercise of parental responsibilities incorporating the idea that both parents are responsible for their children and should jointly make key decisions.

7.70 In England and Wales, section 1 of the Children Act 1989 provides that the court should presume, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child’s welfare.

7.71 Evidence generally shows that children benefit from both parents being involved in their lives. For example, research by the Nuffield Foundation in 2013 found that children benefit from the quality of parenting they receive and the quality of the relationship between parents ^[66] . Research also shows that more frequent and regular contact is associated with closer relationships with non-resident parents and fewer adjustment problems in children ^[67] .

Pros/Cons

7.72 As mentioned above, the main benefit of introducing the presumption that both parents should be involved in a child’s life, unless the contrary is proved, is that there is evidence to show that shared parenting can benefit a child.

7.73 This presumption may also be in line with article 9 of the UNCRC which provides that children should have the right to maintain personal relations and direct contact with both parents on a regular basis when a child is separated from one or both parents, except if it is contrary to the child’s best interests.

7.74 However, there will be cases where a child does not benefit from both parents being involved in their life (the presumption would, of course, be rebuttable).

7.75 In addition, any presumption in favour of shared parenting might cut across the key principle in section 11(7)(a) of the 1995 Act that the court shall regard the welfare of the child concerned as its paramount consideration. We do not wish to take any steps which could detract from that key principle.

Question 23): Should there be a presumption in law that a child benefits from both parents being involved in their life?
Yes
No
Why did you select your answer above?

Provision laying down that courts should not presume that a child benefits from both parents being involved in their life

Background

7.76 We are seeking views on whether primary legislation should be made laying down that courts should not presume that a child benefits from both parents being involved in their life. This is the opposite to the presumption above.

7.77 A study from Belgium shows that there has been little evidence that children’s well-being in shared residence is higher than children living with one parent. There is also evidence that it might be more stressful for a child to live alternately with both parents ^[68] . Evidence also shows that if parental conflict is high and on-going, then shared parenting is associated with lower child well-being compared to sole residence . ^[69]

Pros/Cons

7.78 One potential justification for legislative provision laying down that a court should not presume that it is in the best interests of a child for both parents to be involved in a child’s life results from the evidence mentioned above.

7.79 As discussed in part 9 of this consultation, research suggests that domestic abuse is a feature of around half of all court actions over contact. Therefore, a presumption of this nature in the legislation may reflect the reality of many situations. It may not be in the child’s best interest for both parents to be involved in their life if there are allegations of domestic abuse.

7.80 However, any provision of this nature might cut across the key principle in section 11(7)(a) of the 1995 Act that the court shall regard the welfare of the child concerned as its paramount consideration. We do not wish to take any steps which could detract from that key principle.

Question 24): Should legislation be made laying down that courts should not presume that a child benefits from both parents being involved in their life?
Yes
No
Why did you select your answer above?

Involvement of non-resident parent in education decisions/provision of information to non-resident parent about their children’s learning

Background

7.81 We are seeking views on how best to ensure that non-resident parents are kept informed by schools. In particular, we are seeking comments on pupil enrolment and annual updates to schools about information on pupils.

7.82 The Scottish Schools (Parental Involvement) Act 2006 established a framework for parental involvement in schools. This Act only applies to state schools. This Act applies the definition of “parent” that is set out in the Education (Scotland) Act 1980 which includes “guardian and any person who is liable to maintain or has parental responsibilities (within the meaning of section 1(3) of the 1995 Act) in relation to, or has care of a child or young person”.

7.83 This definition includes non-resident parents who have PRRs and also people who have no PRRs but fall within one of the other aspects of the definition such as “care of a child or young person”. The Scottish Government proposes to bring forward an Education Bill in 2018, dealing with a range of governance matters including parental involvement and engagement. Any new legislative provisions would be likely to be accompanied by revised statutory guidance which would be subject to public consultation.

7.84 Non-resident parents have the same rights as a resident parent to access their child’s educational record. Regulation 5(2) of the Pupils’ Educational Records (Scotland) Regulations 2003 ( SSI 2003/581) provides that upon the request by a parent for disclosure of their child’s education records, the school must do so. These regulations cover all schools in Scotland. The regulations provide for exceptions for sensitive personal data, or if the school believes that the disclosure of the educational records would likely cause significant distress or harm to the pupil or any other person, they may withhold the information.

7.85 There could be cases where it may not be in the best interests of the child for schools to share information with non-resident parents. An example might be where domestic abuse has occurred. We believe that the exemption in the Pupils’ Educational Records (Scotland) Regulations 2003 would allow for information not to be shared in these circumstances.

7.86 Each local authority has a different pupil enrolment form and some local authorities do not request details of the non-resident parent. In addition, we understand that the annual update form may be only sent to one parent. This parent would then have the responsibility for deciding whether to enter the contact details of the other parent if they no longer live together.

7.87 There are two options to help ensure that non-resident parents are more involved in education decisions and are provided with appropriate information to engage with their children’s learning and progress through school. As the pupil enrolment forms vary between local authorities, the Scottish Government could create a statutory form that would be used by all local authorities. The other option is that the Scottish Government could provide guidance to local authorities on the existing legislation, and Scottish Government could carry out work to improve the consistency of forms across local authorities. In addition, the Scottish Government could explore further steps to support broader culture change, awareness levels and approach across schools.

Pros/Cons

7.88 The first potential option of creating a statutory pupil enrolment form would have the benefit of ensuring that information on non-resident parents would routinely be gathered. However, any statutory form would only be for state schools.

7.89 It would also only cover information on parents who were a non-resident parent at the time a child is registered in primary school. It would not cover those parents who become non-resident after the child starts primary school.

7.90 The Scottish Government would need to make it compulsory that the annual update form is to be sent to both parents in order to ensure that the information is kept up to date. The Scottish Government would need to consider the practical difficulties in some cases where for example, information about a non-resident parent may not be provided (for whatever reason) or where details may not be known.

7.91 The second option of providing guidance would have the benefit of not requiring primary legislation and therefore could be done more quickly.

7.92 In addition, it could cover all schools in Scotland and not just state schools. Guidance could also be used to encourage schools to maintain updated contact details for non-resident parents. However, guidance may not reduce the level of discrepancy between schools in the information they gather on non-resident parents.

7.93 Guidance could also cover the surname used to register a child. There are cases where a parent may register a child at school with a different surname to that on the birth certificate.

Question 25): Should the Scottish Government do more to encourage schools to involve non-resident parents in education decisions?
Please select only one answer.
a) Yes – put the pupil enrolment form and annual update form on to a statutory basis.
b) Yes – issue guidance on the enrolment form and annual update form.
c) Yes – other (please specify).
d) No – no further action by the Scottish Government is required.
Why did you select your answer above?

Involvement of non-resident parent in health decisions

Background

7.94 We are seeking views on how best to ensure that non-resident parents are kept informed by health boards and GP surgeries.

7.95 The British Medical Association has produced guidance on confidentiality and the disclosure of health records ^[70] . This explains that children who are aged 12 or over are generally expected to have capacity to give or withhold their consent to the release of information.

7.96 If the child has the capacity to give or withhold consent to a treatment or to the release of information from their health records, health professionals should respect their wishes. Anyone with PRRs has the right to ask for their child’s records. However, a child with capacity can refuse access. Access can also be refused when it is not in the child’s best interests.

7.97 There are two options to ensure that non-resident parents should be kept informed of health decisions. The first is through legislation. The second is through guidance.

Pros/Cons

7.98 Introducing legislation would ensure that across Scotland, anyone with PRRs has the right to ask for their child’s records. However, a child with capacity can refuse access. Access can also be refused when it is not in the child’s best interest. In order to fulfil their parental responsibilities anyone with PRRs has the right to access to the child’s medical records as long as the child agrees if they have capacity and it is in the best interests of the child. Therefore, additional legislation may not be necessary.

7.99 The second option of providing guidance to health practitioners would have the benefit of not requiring primary legislation and therefore could be done more quickly.

7.100 Guidance could also cover information on the surname to be used when registering a child. There are cases where a surname other than that listed on the birth certificate has been used to register a child.

7.101 A drawback of providing guidance is that it may not reduce the level of discrepancy.

Question 26): Should the Scottish Government do more to encourage health practitioners to share information with non-resident parents if it is in the child‘s best interests?
Please select only one answer.
a) Yes – legislation.
b) Yes – guidance.
c) Yes – other (please specify).
d) No – no further action is required.
Why did you select your answer above?

Not all section 11 orders granting PRRs

Background

7.102 We are seeking views on whether section 11 of the 1995 Act should be clarified to provide that orders, apart from orders in relation to residence, or to PRRs themselves, do not automatically lead to PRRs or to a change in PRRs. The key aim would be to make it clear that a contact order does not have to grant PRRs.

7.103 As mentioned in the introduction to this part of the consultation, section 11 of the 1995 Act lays down orders that a court may make. We are aware that there may be confusion as to whether section 11 orders automatically grant PRRs to individuals.

7.104 Our understanding of the 1995 Act from case law is that:

• Section 11(12) of the 1995 Act makes specific provision so that when a residence order is made, the person receives (some) PRRs unless the court makes provision to the contrary;
• There is no equivalent provision in the 1995 Act awarding automatic PRRs when a contact order is granted; and
• In some cases (e.g. a court order depriving a person of PRRs), it is clear that an order under section 11 does not also award PRRs.

7.105 This issue has links with the issue covered in paragraphs 4.34- 4.42 regarding sibling contact. However, this issue is wider as there may be cases where it is in the child’s best interest for them to have contact with an individual other than a sibling and it is not necessary for that individual to have PRRs.

Pros/Cons

7.106 A clarification of the law could benefit a child as a person could be granted contact without being given PRRs. The key tests in section 11 in relation to the welfare of the child and no order being made unless that is better for the child would, of course, remain in place. Provisions on the voice of the child would also remain in place, subject to any changes following this consultation.

7.107 However, it can be argued that the law is already clear enough and therefore further legislation is not necessary.

Question 27): Does section 11 of the 1995 Act need to be clarified to provide that orders, except for residence orders, or orders on PRRs themselves, do not automatically grant PRRs?
Yes
No
Why did you select your answer above?

Turning a child against a parent

Background

7.108 There may be cases where children are put under pressure by one parent to reject the other parent. This can include:

• A parent constantly badmouthing or belittling the other;
• Limiting contact;
• Forbidding discussion about them; and
• Creating the impression that the other parent dislikes or does not love the child.

7.109 This can be referred to as “parental alienation” but that term can give rise to disputes and disagreements. Therefore, it may, perhaps, be better not to use that particular term but instead to refer to the types of activity involved.

7.110 In this consultation, we are seeking views on what action, if any, we should take to try and stop children being put under pressure by one parent to reject the other parent.

7.111 Research has suggested that putting pressure on a child to reject another parent can have a negative impact on the wellbeing of the child ranging from mental health disorders (eg depression, anxiety, substance abuse and conduct disorders) to declines in academic performance and even suicide ^[71] . Turning a child against a parent can also have a negative impact on the wellbeing of the parent involved.

7.112 In England and Wales, CAFCASS is trialing new guidelines for practitioners on identifying cases of parental alienation and ensuring that the child’s best interests remain at the centre of any contact or residence case. CAFCASS are also trialing a new strategy with a focus on allowing the child to maintain a relationship with both parents, but if the alienating parent fails to improve their behaviour, their contact with the child could be restricted or, in the most serious cases, refused.

7.113 There are a number of options to try and ensure that a parent does not encourage a child to reject another parent. Potential actions include adding the issue to:

• Any new welfare checklist for the court to consider in section 11 cases (see paragraphs 10.17 - 10.20 of the consultation); or
• The training for child welfare reporters (see paragraphs 2.54 - 2.75 of the consultation).

Pros/Cons

7.114 There are a number of benefits to ensuring that children are not deliberately turned against one of their parents. Firstly, as mentioned above there is evidence to show that this can have a negative impact on the wellbeing of the child. There are also arguments that it is in the best interests of the child to have both parents involved in their upbringing. A parent not seeing their child may also have negative impacts on the health of the parent.

7.115 Secondly, Article 9(3) of the UNCRC provides that: “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”

7.116 However, a parent may appear to be turning a child against another parent, but they are actually trying to protect the child. An example could be in cases where there are allegations of domestic abuse.

Question 28): Should the Scottish Government take action to try and stop children being put under pressure by one parent to reject the other parent?
Yes
No
Why did you select your answer above?

If you selected yes, what should be done?

Removal of PRRs if a parent is found guilty of a serious criminal offence

Background

7.117 We have received correspondence about parents who have been convicted of serious criminal offences and whether it is appropriate for them to retain PRRs.

7.118 We are seeking your views on whether a parent found guilty of a serious criminal offence could have their PRRs removed by the criminal court. There are two potential ways this could be done:

• An application could be made to the criminal court following a conviction to remove that person’s PRRs; or
• The criminal court could be given a duty to consider the removal of PRRs when a person is convicted of certain types of offences.

Pros/Cons

7.119 In certain circumstances it might be in a child’s best interests for a parent who has been convicted of a serious criminal offence not to have PRRs and for these PRRs to be removed quickly.

7.120 However, there are a number of drawbacks to this proposal, as outlined below:

• There may be cases where a child wishes for a parent to still be involved in their life despite any conviction for a serious criminal offence;
• The criminal court is unlikely to be in a good position to obtain the views of the child. If the child had to appear in a criminal court this could have a negative impact on the child;
• If an application had to be made to the criminal court, it is not clear who would make any such application (which would be about a civil matter rather than a criminal matter);
• The proposal may also lead to more cases in the criminal courts as the procedure for the criminal court removing PRRs may be a separate procedure from the original criminal case;
• The proposal may also lead to higher legal aid costs as criminal cases could take longer and include appeals against the removal of PRRs (against that, there might be fewer civil cases as there could be a drop in the number of civil cases seeking the removal of PRRs from a person);
• Under the proposal, a number of solicitors may have to be involved as individuals may have different solicitors acting for them in criminal and civil cases;
• There would need to be further consideration of what is meant by a “serious criminal offence”. It could be difficult to establish exactly what types of offences would justify the criminal court considering the removal of PRRs;
• Any proposal that required the removal of PRRs may infringe on a person’s rights under Article 8 of the ECHR which provides a right to respect for one’s private and family life, home and correspondence; and
• A parent can already apply to the civil courts for PRRs to be removed from the other parent if the other parent is convicted of a serious criminal offence.

Question 29): Should a person convicted of a serious criminal offence have their PRRs removed by the criminal court?
Please select only one answer.
a) Yes – by an application to the criminal court following a conviction to remove that person’s PRRs.
b) Yes – by giving the criminal court a duty to consider the removal of PRRs when a person is convicted of certain types of offences.
c) No – leave as a matter for the civil courts.
d) No – another way (please explain).
Why did you select your answer above?