Publication - Publication

Review of Children (Scotland) Act 1995 consultation: analysis

Published: 22 May 2019
Directorate:
Legal Services (Solicitor to the Scottish Government)
Part of:
Law and order
ISBN:
9781787818163

This report provides an analysis of the consultation responses from the consultation on the Review of the Children (Scotland) Act 1995.

209 page PDF

1.1 MB

209 page PDF

1.1 MB

Contents
Review of Children (Scotland) Act 1995 consultation: analysis
8 Parental Responsibilities and Rights

209 page PDF

1.1 MB

8 Parental Responsibilities and Rights

8.1.1 The consultation sought views on a number of topics related to who should have Parental Responsibilities and Rights (PRRs), the terminology used, whether children benefit from both parents being involved in their upbringing, and the role of non-resident parents.

8.1.2 The main consultation asked a range of different questions, while the young persons’ survey also included a few questions with relevance to these topics.  Where questions or responses relate to the young persons’ survey, this has been highlighted in the relevant sections below.

8.2 Step Parents’ Parental Responsibilities and Rights

8.2.1 The main consultation document sought views on whether to introduce a step parents’ PRR agreement so that step parents could obtain PRRs without having to go to court.  Should this agreement be established, it was suggested that it could be registered in the Books of Council and Session (for a fee) operated by Registers of Scotland.

8.2.2 It was highlighted that such an arrangement had been consulted on previously (in 2004), but due to the serious reservations expressed about how to safeguard children’s views and interests, this was not taken forward.

Q16. Should a step parents’ parental responsibilities and rights agreement be established so that step parents could obtain PRRs without having to go to court?

Number Percentage
Yes 61 24%
No 111 44%
No response 82 32%
Total 254 100%

8.2.3 Compared to the consultation results from 2004 where 54% of respondents were in favour of such an agreement, only 24% of respondents in the current consultation felt that such an agreement should be established, while 44% were against this.  The remaining 32% did not provide a response.

Reasons Not to Provide Step Parent PRR Agreements/Caveats for Support

8.2.4 Several individuals felt that PRRs should be for the biological parents only:

“Only a biological parent should have PRR. This ensures that the full rights of the biological parent cannot be eroded or removed.”  (Individual)

8.2.5 More specifically, it was suggested (by both individuals and organisations) that a step parent PRR agreement could potentially create confusion and dilute the effectiveness of PRRs.  One individual and one organisation suggested that the proposal would make it easier for step parents to obtain PRRs than is currently possible for some biological/non-resident parents.  A few others were concerned that the PRRs of those living with the child may become more important than those of the non-resident parent.  It was also highlighted by a few individuals and organisations that, where a parent has many new partners they could all be provided with PRRs, and without a limit on how many PRRs could relate to a child at any one time this risked many individuals holding PRRs for a child, even when some will no longer have any contact with that child.  As such, it was suggested that this risked turning the system into “a farce”.  Further, it was felt that such an agreement could create more conflict and disagreement between the parents (or those with PRRs), and also provide scope for one parent to have greater control, manipulate situations and risked it being used as a tool to push a parent out of a child’s life:

“Giving a third adult greater rights in respect of a child increases the risk of conflicted views between those adults… one parent may push a new partner to get PRR with a view to thwarting or overruling the future choices of the other parent of the child.”  (Individual)

“This could lead to multiple step parents having PRRs in respect of a particular child which in turn, could lead to more dispute and litigation.”  (Local Authority)

8.2.6 It was felt that the proposal was not child-focused, that the new system would not take account of the views of the child, and that additional PRRs could be conferred on individuals when it would otherwise not be considered as in the best interests of the child.  It was felt that such a change was focused primarily on the adults involved rather than on the child, with several commenting that this ‘commodified’ the child.  Those generally in favour of step parent PRR agreements also felt that there needed to be some way to take the child’s views into account and/or to review the situation on a case-by-case basis: 

“A step parent agreement may not take into full consideration the child's best interests and views, as it is likely in many cases to mirror what the resident parent and step parent want rather than the child.”  (Individual)

“In order to obtain PRRs without the need to go to court the rights of children and their views would be omitted from the application and would therefore be open to abuse.”  (Domestic Abuse Support Service)

8.2.7 Such an agreement was also felt to be unnecessary.  Many commented that step parents can already apply to a court where they desire PRRs.  This was considered to be a more appropriate setting for such decisions, as the views, welfare and best interests of the child would be safeguarded.  It was also suggested by a few organisations that this formal legal process helped to ensure that all involved understood the legal implications and responsibilities involved in granting PRRs.  In addition, it was highlighted that extensive provision already existed for step parents to have significant responsibilities for a step child, without the need for PRRs:   

“Step parents’ roles differ in different families.  If they want parental responsibilities it is appropriate that they go to court.”  (Individual)

“For a step parent to have parental rights and responsibilities, they should thus have to go through the formal court process, and the views of the child should be carefully considered. We are also concerned that without this formal process, it may be possible for people not to understand the legal responsibilities associated with PRRs.”  (Public Body)

8.2.8 A few individuals and organisations also suggested that step parent PRR agreements could create greater levels of conflict and result in more cases going to court should the parent and step parent separate/divorce, either due to the step parent seeking contact with the child or to have step parents PRRs removed.  A few organisations and individuals also highlighted a lack of safeguards for domestic abuse, highlighting that this could be used as a tool by perpetrators to gain and retain control over their victim and their children.

8.2.9 Many organisations and individuals (both for and against the proposal) also felt that greater clarity was required over the definition of a step parent.

Support for a Step Parents PRR Agreement

8.2.10 Both individuals and organisations who agreed that such an agreement was suitable typically acknowledged that children and step parents often have strong relationships/bonds, that step parents are generally invested in the child’s welfare/care, and that they can often be more involved in the upbringing of a child than a biological parent.  Several also suggested that step parents were often performing the role of a parent and so providing them with PRRs should be made easier and should not require court procedures.  A few also highlighted that society and family norms has changed a lot and so procedures needed to be updated to reflect this:

“Society has changed much over the last 25 years, step parents are now a common and important part of family life. A step parent who is loving, caring and compassionate in helping a child enter the adulthood should not have to go to court to prove this.”  (Individual)

8.2.11 A few individuals felt that such an approach would be more convenient and cheaper for the parties involved, and would help to take the pressure off the court system.  However, a few organisations and individuals suggested that both biological parents (or those with existing PRRs) should have to give consent before PRRs could be conferred via such an agreement.

Young People’s Views Regarding Step Parent PRR Agreements

8.2.12 The young persons’ survey also asked respondents whether step parents should be able to have responsibility for a child without going to a judge by signing a document with everyone else who already has PRRs for the child.

YP10. Should step parents be able to have responsibility for a child without going to a judge by signing a document with everyone else who already has responsibilities and rights for the child?

Number Percentage
Yes 81 27%
No 84 28%
Don’t know 37 13%
No response 93 32%
Total 295 100%

8.2.13 Responses from young people were more evenly split between those who said ‘yes’ (27%) and those who said ‘no’ (28%) compared to respondents in the main consultation.  A further 13% of young people replied ‘don’t know’ and 32% did not provide a response.

8.2.14 Again, those who supported this method indicated that step parents can be very important in a child’s life, and are sometimes more stable/a better influence that the biological parent(s).  It was felt that, where they are involved in caring for a child, they will be given responsibilities concerning the child and therefore they should be provided with the necessary rights to support this.  Respondents therefore felt, that provided everyone agreed, there was little need to involve a judge:

“The minute a step parent becomes one of the children’s 'parents' they then have the responsibility to look after that child therefore they should have the rights too.”  (Young Person, Age 13-16)

“Step parents can be just as/more important and formative as parents. If everyone agrees responsibility should be able to be given without involving judge.”  (Young Person, Age 19-25)

8.2.15 Others caveated their support, suggesting it would depend on the situation, the step parent and their relationship with the child, and whether the child consented or not:

“It depends on the situation, not all family’s circumstances are the same.”  (Young Person, Age 13-16)

8.2.16 Several disagreed with the suggested method as they felt that any agreement and conferring of PRRs to step parents should be more robust, official and/or legally binding.  One respondent also suggested that there must be a legal overview of the arrangement as it impacts on consent:

“Needs to be legal to be enforced.”  (Young Person, Age Under 8)

“There should be more checks done than simply asking a group of people to sign a form...”  (Young Person, Age 13-16)

8.2.17 Other young people disagreed with the suggestion as they felt that the only people who should retain PRRs were the biological parents (similar to views expressed by adults).  A few respondents were concerned that this may result in rights being taken away from a biological parent or that one party may feel coerced into signing the form.  Risks were also highlighted by a few young respondents that step parents may be abusive or unsuitable as parents.

8.3 PRR Terminology in the 1995 Act

8.3.1 The main consultation document outlined the responsibilities and rights that parents have, and highlighted that a person has parental rights to enable them to fulfil their parental responsibilities.  The consultation sought views on whether to remove the term “rights” and just refer to “responsibilities”, which would be more in line with the terminology used in England and Wales, and in the Brussels IIa Regulation. 

8.3.2 The consultation also identified that the 1995 Act uses the terms “contact” and “residence” to describe two of the types of orders that a court may make, but that the terms could be seen to suggest that one parent has a better position in relation to a child than the other.  Therefore, the consultation also sought views on whether to replace the terms “contact” and “residence”, perhaps for “child’s order.”

8.3.3 Responses to each of these proposals are outlined below.

Parental Rights

Q17. Should the term “parental rights” be removed from the 1995 Act?

Number Percentage
Yes 42 17%
No 128 50%
No response 84 33%
Total 254 100%

8.3.4 Half (50%) of all respondents felt that the term “parental rights” should not be removed from the 1995 Act, while 17% felt it should.  The remaining third (33%) did not provide a response.  Only nine organisations agreed that the term should be removed, with the remaining 33 respondents being individuals.

Reasons to Retain the Term ‘Parental Rights’

8.3.5 It was felt that parents should have, and indeed did have rights, in particular the right to a family life as outlined in Article 8 of the ECHR was cited.  It was felt that parents should have the right to bring up or be involved in the upbringing of their child, with organisations stressing the importance of parents being supported to do this:

“A child, like both parents, have the rights to each other on, not only the safeguarding and raising the child to adulthood, but also gives the parents the right to be there equally to raise that child. If changed to responsibility then it will weaken the rights for the child to be raised by both parents. A parent who is in dispute with the other parent will also use the terminology as a weapon to remove responsibility away from the other parent.”  (Individual)

“…we would be concerned that this could be perceived as parents losing rights. Instead, we see child rights and PRRs as being complementary rather than in conflict and are clear that families should be supported to ensure they can fulfil their children's rights.”  (Children’s Organisation)

8.3.6 Several (both individuals and organisations) felt that it was important to stress that parents have both responsibilities and rights, and that these reinforce each other, that you cannot have rights without fulfilling certain responsibilities:

“The reference to "rights" and correlative "responsibilities" is appropriate. One without the other would be wrong, but it is clear that with rights come responsibilities.”  (Individual)

“Section 2 of the 1995 Act already provides that a parent has parental rights to enable him or her to fulfil parental responsibilities. The two are complementary to one another. They co-exist, but are discrete and the recognition of that is proper.”  (Legal Profession)

8.3.7 It was also suggested that parents should have equal rights, but was often felt that currently the system favours the resident parent.  Several individuals also suggested that the term PRR gave non-resident parents some legitimacy when liaising with authorities about their child:  

“There are already limited rights that a father can exercise. Removing this will make it even worse for a father to perform his duties.”  (Individual)

“…the term parental rights should remain as it is one of the few things a non-resident parent can quote when speaking with organisations that are bias[ed] against non-resident parents.”  (Individual)

8.3.8 Similarly, several organisations also stressed the importance of the term “parental rights” when parents need to liaise with statutory services and, in particular, with social work (although health and education were also mentioned, albeit less frequently).  Further, it was considered that such a change could loosen local authority responsibility to provide supported parenting services to parents with learning disabilities.  As such, it was felt appropriate/necessary to retain the terminology to assist parents:

“The emphasis of the word ‘rights’ is a clear reminder to services that parents should be supported to exercise their responsibilities and rights on important decisions about their children.”  (Local Authority)

“…the term ‘rights’ is far too critical for parents with learning disabilities in establishing their role as parental caregivers in child protection procedures, which evidence suggests do not often operate in their favour.”  (Other Organisation)

8.3.9 Many also saw no need for a change that was simply related to semantics.  They felt that the current wording was clear and effective, and that the cost/resources involved in such a change would be disproportionate to the benefits (if any) that would be gained.  Further, several respondents (both individuals and organisations) felt that removing “parental rights” would not be consistent with other international instruments, including the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Article 5; the 1995 Hague Convention on Child Protection, Article 3(b); the Brussels II bis, Article 2.7; the UNCRC, and the UN Convention on the Rights of Disabled People Article 18.  Similarly, it was highlighted that other parts of Scottish legislation were framed around the 1995 Act, such as permanence orders in the Adoption and Children (Scotland) Act 2007, and would need to be addressed if any changes were made:

“Sections 1 and 2 of 1995 Act are admirably clear as to the relationship between rights and responsibilities and I see no reason for change.”  (Individual)

“The change would require extensive change to other primary and secondary legislation; if such a change is only semantic, there is no discernible benefit in going to such lengths.”  (Local Authority)

8.3.10 It was suggested by several individuals and organisations that better education and awareness raising was required rather than changing the terminology used in the legislation.  Several respondents also suggested that greater consistency in the use of the terminology may be helpful, in particular ensuring the order of ‘parental responsibilities and rights’ is maintained to reinforce the importance of a parent’s responsibilities over their rights.

Reasons to Remove the Term ‘Parental Rights’

8.3.11 Those who agreed that the term should be removed typically gave one of two arguments for this.  The first was that the terminology implied that the parents have rights, which was not felt to be the true meaning/interpretation of the Act.  As such, it was felt that removing the term would provide clarity that parents have responsibilities to their children rather than rights to/over them:    

“…the retention of the language of parental rights gives a message to parents that they have "rights".  The truth is that they do not… Changing the terminology would harmonise the legal reality and the social understanding of what the law is saying.”  (Individual)

“Parents can often be caught up in their own rights and neglect to focus on the responsibilities they have as a parent therefore the term rights should be dropped from the act.”  (Local Authority)

8.3.12 The second argument suggested that parents should not have “rights” over the child, but rather that the child’s welfare and best interests should be paramount.  It was felt that the parent’s right to see the child often overshadowed the best interests of the child:

“The change emphasises responsibility for children rather than rights over them and would make parental disputes focus on who is responsible to provide an upbringing, rather than adults using their “rights” to fuel their own arguments.”  (Local Authority)

“The key difficulties with the current system stem from the adversarial nature of these cases. Too often parental rights override those of children. We support efforts to strengthen the rights of children and provision for considering children’s best interests as paramount.”  (Domestic Abuse Support Service)

8.3.13 A few also agreed that the change would bring Scottish legislation into line with England and Wales.

Child’s Order

Q18. Should the terms “contact” and “residence” be replaced by a new term such as “child’s order”?

Number Percentage
Yes 84 33%
No 85 33.5%
No response 85 33.5%
Total 254 100%

8.3.14 Responses were mixed in relation to this proposed change, with one third each in favour of such a change, against, and not providing a response.

Reasons to Replace “Contact” and “Residence”

8.3.15 Many individuals and organisations who were supportive of replacing the terms “contact” and “residence” with “child’s order” felt that the current terminology inferred greater importance of rights on one parent over the other.  They were keen that any changes provided greater equality.  Some felt that the terms “contact” and “resident” versus “non-resident parent” often demeaned and undermined non-resident parents, inferred social judgements on their care/interest in their child, and perpetuated a hierarchy/sense of “winner” and “loser” in the outcome: 

““Contact” is a particularly pathetic term, as if the “contact” parent is not expected to play any significant part in the child’s life.”  (Individual)

“…parents who hold a residence order consider themselves to be in a stronger position than those who have a contact order only.  It is seen in some situations as the “higher” order.  Any shift that give equal weight to each parent’s role as parent would generally be beneficial.”  (Public Body)

8.3.16 Indeed, it was stressed by several individuals that a greater emphasis needed to be given to shared care, with this being considered the default position (unless it was determined not to be in the best interests of the child):

“We need to move towards 'shared parenting', which does not have to mean a 50/50 split in time, but which should mean equal responsibilities and equal opportunities for parents to parent in the best interest of the child.”  (Individual)

“Increasing shared care orders which come under neither heading so child's order is non-judgmental and does not favour one parent (with residence) over another (with contact).”  (Individual)

8.3.17 It was also felt that the “child’s order” terminology helped to place a greater emphasis on the child rather than the parents:

“Doing this may help encourage professionals and parents to keep the child at the centre of the court process.”  (Individual)

“Renaming the term to Child’s order would help keep the child/young person as the primary focus and maintains the principles of GIRFEC.”  (Local Authority)

8.3.18 A few respondents, however, highlighted that, should changes be made, it may be helpful/necessary to mirror this across children’s services, and in the Children’s Hearing System in particular, so that terminology is consistent across all settings. 

8.3.19 While generally supportive of a change in terminology, several respondents suggested that “child’s order” was inappropriate/misleading and so felt that greater consultation (including with children themselves) was required around suitable replacements.  Others suggested possible alternative terms, which included child arrangements order, shared residence order, parenting order, parenting plan order, parent’s agreement and responsibility order, family order, living arrangements, care arrangements and child’s best interest order.

Reasons for No Change

8.3.20 Individuals and organisations who were against such a change typically felt that the use of “contact” and “residence” was helpful as it described the nature of the order.  It was felt that these were definitive and easily understood terms, with one individual suggesting that a “child’s order” would sound “so much worse to a very upset parent”.  Some organisations also felt that the term “child’s order” lacked clarity, could be misleading, and could create confusion:

“Contact and residence describes the order so leave it as it is.”  (Individual)

“A Child’s Order is not clear - it could be confused with a Child’s Plan and also could be perceived as requiring a child to do something.”  (Family Support Organisation)

8.3.21 As with the proposed change to “parental rights” above, many respondents again suggested that a change to “child’s order” was unnecessary and would make no real difference to attitudes or practice:

“This is only playing with words and does not necessarily add to ones understanding of the concepts, especially for the child. Keep it simple!”  (Individual)

“In practice, changing the statutory language is unlikely to resolve the animosity that can exist in these situations.”  (Legal Profession)

8.3.22 Several also felt that the change would make no real difference to the rights and wellbeing of the child, and may indeed not be in their best interests.  It was suggested that the change was designed to provide balance for the adults involved but could impact negatively on a child’s understanding of where they live and their sense of belonging:

“The present advantage of a residence order is that it clearly demarks the child’s primary residence. Existing research suggests that children who have experience of shared care arrangements would prefer the sense that they have a fixed home address rather than of shifting sands.  A ‘child arrangements order’ or similar may appease the adults’ need to feel they are on an equal footing, but is not clear how it benefits the child.”  (Individual)

“…any changes to terminology to the types of order a court may make should be rooted in the child’s best interests, not parents’ concerns about position.”  (Domestic Abuse Support Service)

8.4 Fathers’ Parental Responsibilities and Rights

8.4.1 Both the main consultation document and the young persons’ survey sought views on whether all fathers should automatically be granted PRRs.  The main consultation asked whether all fathers should be granted PRRs, while the young persons’ survey asked whether every dad should automatically have parental responsibilities and rights for their child.  

Q19. Should all fathers be granted PRRs?

Number Percentage
Yes 107 42%
No 74 29%
No response 73 29%
Total 254 100%

8.4.2 Just over two in five respondents (42%) who responded to the main consultation felt that all fathers should be granted PRRs, while 29% felt that they should not.  A further 29% did not provide a response.

YP9. Do you think every dad should automatically have parental responsibilities and rights for their child?

Number Percentage
Yes 116 39%
No 67 23%
Don’t know 20 7%
No response 92 31%
Total 295 100%

8.4.3 Similarly, nearly two in five (39%) respondents to the young persons’ survey felt that every dad should be automatically granted PRRs, while nearly a quarter (23%) felt they should not.  A further 7% did not know and 31% provided no response.

Fathers Should Have Automatic PRRs

8.4.4 Across both consultation formats, those who felt that every father should automatically have PRRs for their child often cited equality issues for men and women, and that both parents were considered important.  Several young people also felt that children needed a male role model.  In particular, many felt that mothers and fathers should have equal parental responsibilities and rights, with young people often highlighting that both were responsible for the child’s conception and therefore they should both be responsible for their care:

“Father's also created the child and unless they are a risk to the child, should have rights and responsibilities.”  (Young Person, Age 17-18)

“The system should encourage equal rights to both parents.”  (Individual)

“This would provide each biological parent with parity in relation to their status as a child's parent.”  (Legal Profession)

8.4.5 Again, respondents to both the main consultation and the young persons’ survey suggested that fathers should be automatically given rights at the child’s birth.  These could be removed if it was deemed necessary at a later stage, (either due to abuse, incest or rape, or being entirely absent in the child’s life), in the same way the system works for mothers.  It was also highlighted that mothers could be ‘unfit’ parents and/or perpetrators of domestic abuse, and therefore it was considered highly unfair that all/innocent fathers should be “punished” due to the perception of risk created by a few when the same reasoning did not apply to mothers:

“Once a person becomes a dad, they should be trusted instantly to be a good one. It should be afterwards that a decision could be made to take away his rights for the child if it wasn’t the best for the child.”  (Young Person, Age 8-12)

PRRs should be legally presumed as it is for mothers, then if required in cases of abuse for example the court can remove these rights.”  (Individual)

“It is very discriminatory against all the very decent fathers out there [who] need to fight to see their children, and says nothing about the abusive mothers out there whom have these rights presumed.”  (Individual)

8.4.6 A few individuals and organisations in the main consultation also felt that the notion of automatic PRRs for mothers but not (unmarried) fathers was outdated:

“Time has changed a lot in the way fathers think about their priorities in how they raise a child since 1985. Fathers are and want to be a big part in a child’s life and how that child is nurtured and raised. Fathers now look after a child as equally as a mother does. In days of equality why should one parent be treated differently from the other parent due to what gender they are.”  (Individual)

“Societal norms have changed and families where parents are unmarried are recognised as accepted and normal family structures.”  (Children’s Organisation)

8.4.7 A few organisations also felt that the current court process in order to obtain PRRs was complex and varied across different courts.  It was suggested that automatically granting PRRs would save on time and costs for both parties and the court, while also being more equitable (both in terms of mothers and fathers, but also between married and unmarried parents) and compatible with human and child rights.  It was also felt that automatically granting PRRs would send a message to fathers that they have responsibilities to their child, regardless of their relationship with the mother.

Reasons Fathers Should Not Have Automatic PRRs

8.4.8 Respondents across both consultation methods who indicated ‘no’ (or ‘don’t know’ in the young persons’ survey) typically felt that this should not be an automatic right for fathers, but rather, it should depend on the circumstances.  It was suggested that absent fathers, and those who were considered unfit fathers (for reasons including being irresponsible, abusive, violent, etc.) or a danger to the child or mother should not be given PRRs.  However, where a father was considered to be actively involved in their child’s life and have their best interests at heart it was felt that PRRs should be granted:

“Just because someone is a parent does not mean that they are fit to be one, if the parent is financially stable and responsible enough then yes they should be given parental responsibilities and rights, if not then they should be given a chance to prove that they can be to a legal official, if they can be responsible then they get parental rights and responsibilities if not then they don't.”  (Young Person, Age 13-16)

“I would like to believe that all fathers should have PRRs but unfortunately that is not always possible or in the best interest of the child. I think each individual case should be discussed and the decision made.”  (Individual)

8.4.9 Most organisations (and one individual) also stated that the granting of PRRs on fathers should not be automatic, but rather should take account of the child’s best interests:

“It is only beneficial for PRRs to exist when it is in the best interests of the child - this should not be presumed.”  (Individual)

PRRs are for the benefit of the child, not the parent... The best interests of the child cannot be ascertained if PRRs are automatically granted.”  (Domestic Abuse Support Service)

8.4.10 Some organisations and individuals felt that the current arrangements worked well, were suitable, and struck an appropriate balance between granting PRRs to fathers where appropriate, protecting vulnerable mothers, and upholding the best interests of the child.  It was suggested that the current system ensured most fathers were granted PRRs for their children, and that the small numbers of fathers not named on the birth certificate had the ability to pursue PRRs via court, therefore such a change was unnecessary.  This method was considered preferable to forcing mothers who had been raped or subject to domestic abuse having to go to court to remove PRRs.  Some also felt that providing automatic PRRs on all fathers would not necessarily result in more fathers being actively involved in a child’s life, while it may create significant difficulties for the mother or delays in adoption or permanence proceedings.

8.4.11 Further, a few respondents noted that there would be practical difficulties related to automatically granting PRRs to all fathers.  One respondent from the legal profession noted that a father would still have no legal paperwork proving his PRRs for the child, plus a disinterested father with PRRs could create difficulties for the mother and potentially generate the need for court action on the part of the mother each time they wished to go abroad on holiday.  A local authority suggested this could create significant delays in adoption or permanence proceedings.  One individual noted difficulties around who would identify the father and queried whether this would require compulsory DNA testing of babies in order to confirm paternity.  It was felt that the practicalities of such a system required further consideration.

8.4.12 A few individuals felt that the question needed to be broader and also seek views on whether mothers should/should not have automatic PRRs, as it was felt they could also be irresponsible and not act in their child’s best interest. 

8.4.13 Overall, both those who were in favour of the proposal and those against it stressed that, in certain situations, it would not be appropriate for a father to assume parental responsibilities, e.g. sperm donors or in rape cases.  Further, cases involving domestic abuse and other vulnerable mothers (such as those with learning disabilities) would also require specific provision.

8.5 Joint Birth Registration

8.5.1 The main consultation document also sought views on a number of issues related to joint birth registration.

Joint Birth Registration and PRRs – Backdating

8.5.2 The consultation outlined that, from May 2006 fathers obtained PRRs automatically when they jointly registered a child’s birth with the mother, however, the provision was not made retrospective.  Views were therefore sought on whether backdating PRRs to before this change should be allowed.

Q20. Should the law allowing a father to be given PRRs by jointly registering a birth with the mother be backdated to pre 2006?

Number Percentage
Yes 86 34%
No 88 35%
No response 80 31%
Total 254 100%

8.5.3 Views were largely split on this matter, with 34% in favour of backdating, 35% against, and 31% not providing a response.  It should be noted, however, that among those who supported backdating, only 10 were organisations.

8.5.4 Again, for those that were supportive of backdating PRRs for fathers, equality was cited as the most common reason for support (by both individuals and organisations).  This included equality between mothers and fathers, between fathers, and also between children born on different dates.  Three respondents also highlighted that a father with two children born on different dates would not have the same PRRs for both children, while one described this as a barrier for parents in re-establishing contact with children born before the legislation change:

“Having two children but born either side of the date gives PR to one child, but not the other. Crazy.”  (Individual)

“[We] often hear from unmarried fathers who have children born both before and after 4th May 2006.  These children are currently being considered differently in law because of the lack of backdating.”  (Family Support Organisation)

8.5.5 A few also felt that if this change was considered to be ‘right’ post-2006 then it was also right for fathers and children before this date.  A few individuals could not understand why it had not happened before or when the change was first introduced in 2006.  Similarly, professionals felt it had been an arbitrary date and so there was no reason not to backdate it:

“There will still be children affected by this.  2006 was essentially an arbitrary date and accordingly there does not appear to be any child welfare based reason why the law should not be backdated to pre 2006.”  (Legal Profession)

8.5.6 However, many who were against backdating PRRs noted that the further change to legislation would likely take so long to come into effect that it would be unlikely to help very many people as the children would be close to turning 16 years old.  As such, the passage of time meant that no change was required.  It was also suggested that children affected by this were already 12 years old and over, and were therefore old enough to form a view on this and be consulted on major decisions affecting them so it was not something that should happen automatically.  In addition, it was suggested that fathers affected by this and who desired PRRs would most likely have already done something about this, and where they had not it was felt that automatically conferring PRRs could result in conflict within previously settled families.  Further, it was highlighted that where PRRs had been sought and refused by a court, it would be inappropriate to automatically grant them now with no consideration of the child’s best interests:

“A change in the law resulting in automatic granting of PRR to all birth fathers could prompt hostile interference in settled families - including those in which a court has previously adjudicated. It some circumstances it could result in men automatically obtaining PRR in respect of a child they have limited or no involvement with.”  (Individual)

8.5.7 Some also said there was a lack of compelling reasons to make the law retrospective.  Further, it was suggested that this may confer PRRs on individuals that do not want them:

“It is 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.”  (Local Authority)

“This was deemed appropriate at the time and there is no significant reason to change that now.”  (Family Support Organisation)

Making Joint Birth Registration Compulsory

8.5.8 As outlined in the consultation document, since 2006 one of the ways that an unmarried father can obtain PRRs is by jointly registering a child’s birth with the mother. The consultation sought views on whether joint birth registration should be compulsory, i.e. the person registering the birth would be obliged to name both parents.

Q21. Should joint birth registration be compulsory?

Number Percentage
Yes 94 37%
No 85 33%
No response 75 30%
Total 254 100%

8.5.9 Respondents were similarly split in their opinion regarding this proposal - 37% agreed that joint birth registration should be compulsory, while 33% disagreed, and 30% did not provide a response.  Of those that agreed, only 15 were organisations.

8.5.10 Similar to the responses to earlier questions, many respondents (both individuals and organisations) who agreed that joint birth registration should be compulsory felt that it was important for a child to know/have a link to both parents, and that it was important for both parents to have equal/shared responsibilities and rights.  Several indicated that both parents had been required to conceive the child, and therefore both should be shown on the birth certificate:

“Every child has a right to his or her identity, however disturbing their antecedents are.  Ensuring registration of both parents… reflects reality and protects the child's right to know where he or she came from.”  (Individual)

“Both parents matter and it would highlight the responsibility and commitment of both parents.”  (Family Support Organisation)

8.5.11 A few individuals and organisations felt that this change could limit instances of mothers deliberately excluding the father’s name when registering a child’s birth, resulting in fewer fathers having to seek recognition via the court (thus saving both the father and courts time and expense, as well as the stress/emotional turmoil experienced by the father):

“This prevents a mother doing it behind the father's back deliberately so that he cannot get the appropriate rights.”  (Individual)

“This would ostensibly remove the requirement for non-resident fathers/unmarried father to have to go to court (and all the time and money that costs) to get PRRs.”  (Individual)

8.5.12 It was also suggested that such a change could help with compliance with article 7 of the UNCRC.

8.5.13 Several indicated that the exemptions outlined in the consultation document appeared adequate, while others specifically cited rape, incest, domestic abuse, and sexual deviance on the part of a parent as suitable reasons for exemption.  Other legitimate reasons for the absence of the father at birth registrations were considered to include where they are serving in the armed forces or where the father may have died.  However, one individual, while agreeing with the need for some exemptions, felt that exemption based on assumptions of the parent’s suitability/worth was not acceptable.  Similarly, another felt that a casual relationship was not a robust enough reason for fathers to be excluded:

“I would NOT make exceptions based on the unsuitability of the father, for example because of a history of domestic violence.  The law should deal with domestic violence directly and effectively, and not simply punish violence in this way.  In any case, being married is no guarantee of a violence-free relationship.  No exception should be made based on our assessment of the parents' worth.  That is not the point.  A parent is a parent whether they deserve to be or not.”  (Individual)

“It does not seem in keeping with current concepts of equalities law that the rights of men who become fathers after a casual relationship should be lost by being included in the same category [as incest and rape].”  (Family Support Organisation)

8.5.14 Those respondents who were against making joint birth registration compulsory gave a variety of reasons.  It was suggested that it would not always be possible for both parents to attend registration appointments, and that the range of different circumstances which could warrant an exemption could make the legislation convoluted.  Indeed, it was felt that a vast range of exceptions would be needed, not only for the father’s absence but also for the mother’s (e.g. where she may be ill or still in hospital).  In addition, it was felt that the victims of incest and rape should not feel that they have to justify why no father’s name is being provided:

“The number of potential exemptions are wide and varied therefore would seem to out-weigh any advantage.”  (Local Authority)

“I have serious concerns at a system which puts the onus on the mother to give reasons for why she is not registering a partner as the father - to justify herself through pointing to rape, incest, violence, etc.”  (Individual)

8.5.15 Further, it was argued that the change had not been linked to the best interests of the child, and that such a requirement would provide PRRs in a blanket fashion to all fathers, including those who were unsuitable and/or a danger to the child or its mother.  It was also felt that the descriptions of the exemptions were too strict to protect victims of rape and domestic abuse as it was noted that not all victims would have reported the incident, had a conviction, or be involved with social workers or medical practitioners:

“The consultation paper has not demonstrated how compulsory joint birth registration would be in children’s best interests, at a child population level or at an individual level.”  (Family Support Organisation)

“For women who have experienced rape and/or domestic abuse compulsory joint birth registration undermines their right to safety and recovery from abuse.”  (Domestic Abuse Support Service)

8.5.16 It was also suggested that, whilst promoting positive parenting relationships was to be encouraged, compulsory joint birth registration may not be the best way of achieving this.  Similarly, there was a concern that, where several potential fathers exist, forcing a mother to name someone on the birth certificate could result in erroneous information being recorded:

“I think there would have been an incredible risk if the mother was forced to put a name down, that she would just have picked the one [potential father] that she liked best at the time.”  (Individual)

“It would result in males claiming children which are not their own and people finding out at a later date that the person they thought was their father is in fact not.”  (Local Authority)

8.5.17 Further, it was felt that, where both names are not being registered at the time of birth it was likely that there would be some form of dispute, and it was felt more appropriate for disputes to be dealt with by the court:

“The flaw with this approach is that it moves the decision in what could be a situation of conflict from the courts to an administrative process. It is better to leave disputes firmly with the courts so that decisions can be taken on the basis of the child’s welfare.”  (Individual)

8.5.18 Some respondents (one generally supportive of the proposal and the others against) felt that it may be difficult to enforce compulsory joint birth registrations in practice.  Indeed, two respondents highlighted that it would be easy for mothers to claim they did not know who the father was:

“Quite easy for mother to deny knowledge of who father actually is, which would undermine any proposed legislation.”  (Individual)

“We foresee difficulties in enforcing compulsory registration which would significantly outweigh any benefits.”  (Legal Profession)

Joint Registration of Births Overseas

8.5.19 The main consultation document also sought views on whether fathers who jointly register the birth of a child in a country where joint registration leads to PRRs should have their PRRs recognised in Scotland.

Q22. 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?

Number Percentage
Yes 140 55%
No 22 9%
No response 92 36%
Total 254 100%

8.5.20 In this case, over half of the respondents (55%) agreed that PRRs conferred in this way should be recognised in Scotland, while only 9% said they should not.  A further 36% did not provide a response.

8.5.21 As in previous questions, a number of respondents supported this proposal as it was considered to provide greater equality.  Most felt this was a logical “common-sense” approach which would treat people fairly and equally whether they were originally from Scotland or not.  It was also highlighted that other legal provisions that occur overseas, such as marriage and divorce, are recognised in Scotland, and therefore there was no reason not to recognise PRRs in the same way:

“We cannot have different rights or responsibilities for different parents just because their child was not born in that country.”  (Individual)

“We believe this recognition is reasonable and common-sense based on the parallel precedent that a marriage conducted in a different country would automatically be recognised in Scotland.”  (Children’s Organisation)

8.5.22 Several respondents also felt that this approach would be in the best interests of the child.

8.5.23 One organisation indicated that parents relocating to the UK/Scotland already assume that their PRRs are still applicable, and highlighted that there is currently a lack of information altering them to the contrary:

“Most parents who relocate to the UK with their children assume that their PRRs move with them, and the reality only comes to light once problems arise and it is often too late to rectify the problem.”  (Family Support Organisation)

8.5.24 Several individuals (and a few organisations) again suggested that all fathers should have PRRs granted automatically, and therefore joint birth registration (in any country) was a redundant point.

8.5.25 A few supportive individuals did caveat, however, that the PRRs that would apply once in Scotland should be those set down in Scottish law, which may not necessarily match those the father had enjoyed in the country of birth registration.

8.5.26 Of those who were against the proposal, several individuals felt that Scots law should prevail.  It was considered too confusing to have different laws applying to different people, while one organisation suggested that managing such a system could involve significant levels of bureaucracy (although one organisation suggested this system may alleviate a layer of bureaucracy as fathers would no longer need to comply with a further process for recognition):

“We cannot have different laws for different people if you live in Scotland you abide by Scotland's laws.”  (Individual)

8.5.27 A few (individuals and organisations) were also concerned about differing legal standards and diverse cultures awarding rights to fathers that are not compatible with Scottish culture/law.  In particular, one individual felt that fathers should have to apply in Scotland in order to safeguard women and children “who may have arrived from more repressive regimes”, while one organisation was concerned about instances of forced marriage:

“Different legal standards can apply and may not be rigorous in other jurisdictions.”  (Family Support Organisation)

8.5.28 Several organisations indicated that they agreed with the arguments set out in the consultation document, i.e. that it may not be straightforward in practical terms to find equivalents overseas to the procedures in Scotland for joint birth registration and to PRRs; that 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; that the number of fathers affected is likely to be low; and that 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.

8.5.29 A few organisations, however, suggested that a system similar to Intercountry Adoption may be helpful, where PRRs are only recognised from a list of countries which are deemed to meet certain standards.

8.5.30 Two domestic abuse support services were similarly concerned about the implications of applying the system to jurisdictions where women’s rights are less progressive and are overpowered by the rights of fathers, or where joint registration is compulsory (which was not perceived to be appropriate), or where there are insufficient safeguards in place (e.g. where forged birth certificates may be easily obtained).  It was felt that there was a risk of unsuitable fathers obtaining PRRs through a “back door” and therefore greater consideration of all the implications was needed.

8.6 Presumption that Children Benefit from Contact with Both Parents

8.6.1 Understanding whether a child benefits from, and should have contact with both parents was explored across both the main consultation document and the young persons’ survey.

Young Persons’ Survey - Contact with Both Parents

YP4. Should a child have contact with both parents?

Number Percentage
Yes, always 51 17%
Yes, but only if it is good for the child 158 53%
No 11 4%
Don’t know 2 1%
No response 73 25%
Total 295 100%

8.6.2 Most respondents to the young persons’ survey felt that a child should have contact with both parents, however, a greater proportion felt this was only the case where it would be good for the child (53%).  Only 11 respondents (4%) felt that children should not have contact with both parents.

8.6.3 Those who indicated that contact should always be allowed felt that it was important for children to know both parents, to have role models, and to enhance their childhood:

“It is important for kids to have a relationship with both of their parents as they deserve to know who made them and they deserve the chance to get to know them.”  (Young Person, Age 19-25)

“It’s good to have a male and female role model.”  (Young Person, Age 13-16)

8.6.4 One respondent suggested that parents can lie about each other in order to stop contact, while two suggested that supervised contact could be provided in more risky situations.

8.6.5 For those who caveated contact to indicate it should only happen where it would be good for the child (as well as a few who said no to contact with both parents), typically it was felt that the safety of the child was paramount, and that, largely the choice should be the child’s.  They felt it was important that a child was never forced to have contact with someone they didn’t want to or who they may be scared of:

“A child shouldn’t be forced to have contact if they don’t feel safe.”  (Young Person, Age 13-16)

“It has to be the child’s choice to see or not, not one parent going against another.”  (Young Person, Age Undisclosed)

8.6.6 It was also suggested that contact should not be permitted (or should be monitored) where a parent may be abusive, violent, addicted to drugs or alcohol, or generally not a good influence and/or may be considered to be incapable or an unfit parent:

“Because you could have contact with a dad/mum that is bad.”  (Young Person, Age 8-12)

“If one parent is dangerous or not fit to have a child, then it should only be one [parent they have contact with].”  (Young Person, Age 13-16)

Legislation: Presumption of Benefit from Both Parents Being Involved

8.6.7 A similar question was also asked as part of the main consultation, around the presumption that a child may benefit from both parents being involved in their life.

Q23. Should there be a presumption in law that a child benefits from both parents being involved in their life?

Number Percentage
Yes 126 50%
No 70 27%
No response 58 23%
Total 254 100%

8.6.8 Half (50%) of the respondents to the main consultation document agreed that there should be a presumption in law that a child benefits from both parents being involved in their life.  Over a quarter (27%) said there should not.  The remaining 23% provided no response.  This differed to the young persons’ survey, where only 17% of young people felt that contact with both parents should always be implemented.

8.6.9 Respondents who were supportive of such a presumption frequently cited the evidence or belief that a child typically benefits from having both parents in their life, with both parents seen to bring different skills, knowledge, experience, hobbies/activities, and extended family.  It was felt that such a presumption was reasonable, fair, equitable, and more in keeping with modern family life.  While some did acknowledge the difficulties associated with those who may present a risk it was felt unfair to penalise all (non-resident) parents.  Further, respondents felt that the rebuttal presumption would continue to provide flexibility for Sheriffs to make orders which reflected the circumstances of individual cases, and for safeguards to be implemented when either (or both) parent presented a risk:

“You cannot discriminate against the majority of good fathers because of the issues with a minority.”  (Individual)

“The current model adopted in family cases seems rooted in the 1970s and pays little attention to the changes that have taken place in family life in the last 40 years with more female participation in the workforce, more day-to-day hands on parenting by fathers and vastly different expectation among both parents and children of what involved parenting is in reality.”  (Family Support Organisation)

8.6.10 Again, several respondents cited equality issues between mothers and fathers, stressing fathers were just as important in a child’s life and can be equal care givers.  Others felt it would help to limit the extent/prevalence of children being turned against a parent.  It was felt that a bias existed within the system currently, favouring the mother/resident parent, and that this presumption could help to alter that mind-set.  It was also suggested that such a presumption may result in cases being resolved more quickly and with less conflict (and without having to go to court as often), which was considered to be in the child’s best interests:

“Currently, there is a very strong bias amongst the courts, social workers and the police, that mothers are somehow inherently better parents. This is not true. Women and men are capable of exactly the same when it comes to children, however unfortunately mothers are now taking full advantage of the bias[ed] court system.  Good, hard working, hands-on fathers are not having contact with their children as a result of court orders - even though they desperately want to see their children.”  (Individual)

8.6.11 A few individuals appeared to assume that a presumption in law that a child benefits from both parents being involved in their life would therefore mean that shared (50/50) care of the child would be the starting point in any court hearings.  Others, however, felt that this should not provide a presumption of equal time/care arrangements but rather focus on joint and shared responsibility, and that it would be important to stress this to avoid setting unrealistic expectations.

8.6.12 Those against such a presumption in law were concerned that this would encourage courts to make decisions which reflect that position rather than starting with an unbiased view and fully considering what would be in the best interests of the child.  Indeed, many respondents described situations where contact would not be in the child’s best interests, e.g. where there is abuse, drug or alcohol addiction, negative impacts on the child’s mental health, etc.  They indicated that every situation was different so broad assumptions such as this were inappropriate:

“Some parents are toxic and inconsistent bringing disruptions into a child’s life. This can cause psychological trauma.”  (Individual)

“A presumption of a relationship would be particularly concerning for children who have experienced domestic abuse and for whom an ongoing relationship may be unsafe.”  (Children’s Organisation)

8.6.13 Further, it was suggested by a few respondents that such an assumption already informally operates in family courts (in conflict with the bias suggested above by those in favour of the presumption), which was felt to be inappropriate and often detrimental to the welfare and safety of children (and victims of domestic abuse).  It was felt that such a change would make the situation worse.  It was also considered that such an assumption may create an additional barrier for victims to raise issues of domestic abuse.

8.6.14 Many also highlighted that such a presumption did not take the child’s views into account and, indeed, several felt this risked drawing the focus away from the child towards the parents.  It was felt that such a presumption did not recognise the potential negative impact upon the child or the risks posed:

“[We] would consider any legal presumption in favour of shared parenting to be further loading the system against children’s views and experiences being heard.”  (Children’s Organisation)

8.6.15 A few also suggested that, while in the majority of cases this presumption may be acceptable, those cases that go to court are not ‘normal’ family situations and there will be a level of dispute/conflict involved.  Indeed, several organisations suggested that domestic abuse features in over half of all court actions related to contact.  As such, the ‘normal’ presumptions are often no longer applicable and therefore unhelpful for it to be included in legislation or as a starting point for court proceedings. 

8.6.16 Several also felt that such a presumption may contravene the UNCRC which states that children have a right to contact with both parents, but also makes clear that this right must not be enforced if it could cause the child harm.  However, others (in favour of the presumption) suggested that the presumption would still be in keeping with this.     

8.6.17 Ultimately, many who opposed the presumption felt that the current system should remain unchanged and continue to be focused on the child’s best interests, welfare, and the child’s voice:

“We would be better to retain the clarity that best interests (supplemented by views of the child) are the key tests.”  (Individual)

“Decisions concerning parental contact should be based entirely upon the rights of the child. As each child is unique and their circumstances are unique, decisions made about contact should also be unique and built around their needs.”  (Children’s Organisation)

Legislation: No Presumption of a Benefit from Both Parents Being Involved

8.6.18 The opposite presumption to that discussed above was also explored by the main consultation document, i.e. 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.

Q24. Should legislation be made laying down that courts should not presume that a child benefits from both parents being involved in their life?

Number Percentage
Yes 56 22%
No 131 52%
No response 67 26%
Total 254 100%

8.6.19 On this occasion, just over half (52%) of all respondents felt there should be no such presumption, while 22% felt there should be.  The remaining 26% did not provide a response.

8.6.20 Those against such legislation typically felt that it was important for both parents to be involved in a child’s life (with some citing the evidence to support this and suggesting this presumption was more appropriate), and that equality should be provided.  Many also suggested that presumptions (in either direction) were not helpful, but rather all cases should be considered individually, from an impartial perspective, and that the focus should remain on the child’s welfare/best interests.  Again, it was suggested that safeguards already existed to investigate and protect children against abuse and high risk contact, and therefore legislation against a presumption of benefits to the child was unnecessary.

8.6.21 It was also suggested that a negative presumption would require a burden of proof for a rebuttal.  Further, it may be difficult for non-resident parents to prove the benefit of their involvement in their child’s life where the child in question is a baby and/or they have not had a lot of previous contact/involvement due to the other parent’s resistance.  It was felt that such a negative presumption could therefore present a barrier to contact and risked (further) excluding some parents (typically fathers) from their child’s lives: 

“…parents being involved in an uphill struggle from the start trying to demonstrate that it is to their child's benefit for them to be involved when for example this could involve a child who is very young and the non-resident parent may not have had extensive involvement or contact due to the other parent inhibiting or preventing their involvement.”  (Individual)

8.6.22 Those in favour of such legislation felt this was appropriate as not every relationship could be assumed to be positive, and it was felt this would explicitly remove the presumption that contact was always best.  Again, it was felt that courts needed to be impartial (and not make assumptions from the outset), that individual circumstances needed to be considered, that risks needed to be assessed in each case, and safeguards implemented (where necessary).  It was suggested that this would help to ensure that the child’s welfare/best interests and voice were paramount in any decisions taken about contact:

“A lot of law makers want everyone to get along, so will force children to see their parents, even if they don't want too. If there was legislation to prevent it, then it would lead to less damage on a child.”  (Individual)

“Given that domestic abuse is featured in around half of all court actions over contact then we should not presume that it is in the child’s best interests for both parents to be involved in the child’s life.”  (Local Authority)

8.7 Encouraging Involvement from Non-Resident Parents

8.7.1 The main consultation sought views on how best to ensure that non-resident parents are kept informed by schools, particularly around pupil enrolment and annual updates to schools about information on pupils, and by health boards and GP surgeries.

Sharing of Educational Information

Q25. Should the Scottish Government do more to encourage schools to involve non-resident parents in education decisions?

Number Percentage
Yes - put the pupil enrolment form and annual update form on to a statutory basis 70 28%
Yes - issue guidance on the enrolment form and annual update form 49 19%
Yes - other 24 9%
No - no further action by the Scottish Government is required 40 16%
No response 71 28%
Total 254 100%

8.7.2 Just over a quarter (28%) of respondents suggested the best option was to put the pupil enrolment form and annual update form on to a statutory basis.  One in five (19%) suggested it was most appropriate to issue guidance on the enrolment form and annual update form, 9% felt other actions could help, while 16% indicated that no further action was required by the Scottish Government.  The remaining 28% did not provide a response.

Statutory Basis for the Pupil Enrolment Form and Annual Update Form

8.7.3 Respondents in favour of putting the pupil enrolment form and annual update form on to a statutory basis felt that it was important for both parents to be involved in a child’s education, but that currently, it was too easy for a non-resident parent to be side-lined/excluded.  It was suggested that non-resident parents were currently often excluded both by the resident parent and by schools themselves:

“Non-resident parents often have a battle on their hands to be involved in their child’s education and have a voice at schools.”  (Individual)

Guidance on the Pupil Enrolment Form and Annual Update Form

8.7.4 Those who preferred guidance for schools in the pupil enrolment form and annual update form suggested that legislation was not required but that guidance to clarify the position for schools would be helpful.  It was felt that schools often did not know what their obligations were and/or what information they can and cannot disclose to the non-resident parent.  Indeed, it was suggested that requested information was often withheld or that information about one parent was inappropriately shared with the other.  It was also felt that this could help to provide consistency across Scotland, while still providing flexibility to allow schools to tailor solutions appropriately.

Other Actions

8.7.5 A few suggested that it was important for schools to share all communication (including absence reports) with both parents, however, it was indicated that the current information management systems used in some schools limits their ability to communicate with more than one parent resulting in relevant people in the child’s life not receiving communications.  It was, however, highlighted that it should be the parents’ responsibility to ensure that their child’s schools has accurate information on them (e.g. contact details and communication preferences).

8.7.6 Other actions that were suggested by more than one respondent included:

  • For there to be both guidance and a statutory basis for collecting information;
  • Provide schools with guidance about how to respond to requests from parents in situations of separated parents;
  • Training for school staff so they know how to engage with parents who are apart, and are alert to any possible risks; and
  • To update the definition of ‘parent’ to ensure that it covers all aspects of parental and caregiver involvement and engagement, to reflect kinship carers, corporate carers, etc. and ensure definitions are aligned between family law and education settings.

8.7.7 Regardless of which option was favoured, support was caveated to highlight that care was required in any case where risk had been identified, where it was not in the best interests of the child, or where a court had ordered no contact.  It was again stressed that the welfare of the child, their wellbeing and rights were given paramount importance.

No Change Required

8.7.8 Respondents who felt that no change was necessary generally considered that the current system was appropriate.  It was felt that, non-resident parents who were interested in being involved in their child’s life/education could go to the school and request to be included in communications/decisions, and they were concerned that changes could lead to absent parents being kept informed when this may not be what the child wants or be in their best interests.  It was also suggested that a flexible approach was required to deal with pupils’ wishes, safety/risk, domestic abuse, and non-resident parents using the contact/information inappropriately:

“Non-resident parents are quite able to contact their child’s school and obtain any information desired regarding their child.  Interfering in that ensures non-resident parents that do not willingly care for their children are still kept informed when the child may not have any desire for them to be involved.  The legislation would ensure the child’s views were not adhered to...”  (Individual)

8.7.9 It was also suggested by a few respondents that schools found balancing their responsibilities/input difficult when families are in dispute (with a few suggesting it was inappropriate for schools to be expected to mediate/get involved in parental disputes).  Schools already have significant workloads and should not be required to take on such an administrative burden.

8.7.10 Some respondents felt that this issue was not relevant to the 1995 Act, however, but was more an education law issue.  As such, it was felt that greater consideration was required on this issue, with wider consultation required to ensure all key stakeholders could contribute.

Sharing of Medical Information

Q26. 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?

Number Percentage
Yes – legislation 80 31%
Yes – guidance 52 20%
Yes – other 14 6%
No – no further action is required 37 15%
No response 71 28%
Total 254 100%

8.7.11 In relation to whether the Scottish Government should do more to encourage health practitioners to share information with non-resident parents, around a third (31%) felt that greater legislation would be helpful, 20% thought guidance would be preferable, 6% preferred some other option, while 15% felt that no further action was required.  The remaining 28% gave no response.  It should be noted that very few organisations preferred legislation, with only 5 selecting this option.

8.7.12 Again, reasons given to support quantitative responses were similar to those at Q25 above.  It was felt that access to both educational information and health information should be treated in largely the same way. 

Legislation

8.7.13 Those in favour of legislation typically felt that it was important/in the best interests of the child for both parents to be involved in their child’s life and to know about health/medical issues in order to carry out their responsibilities effectively.  It was considered necessary in order to keep a child safe, both when in the care of the non-resident parent, but also to allow the non-resident parent to seek medical attention for their child when necessary.  Equality between genders/parents was again cited as important.  It was felt it was too easy to exclude the non-resident parent and that it can be very difficult for them to access relevant information.

8.7.14 Some individuals suggested that guidance alone would not be robust enough to change attitudes and it could be ignored.  A few organisations also felt that guidance would not create a consistent approach, and that legislation was required to achieve this:

“Legislation means that doctors are left in no doubt and know how to act.”  (Family Support Organisation)

8.7.15 Several did caveat that exceptions would be needed where it was determined that sharing of information would not be in the child’s best interests, or where there were legitimate child protection/safety concerns.

Guidance

8.7.16 Those who felt that guidance would be helpful tended to think that this would provide clarity to health practitioners (in what was considered to be a challenging situation).  It would also encourage consistency in practice across Scotland, whilst still allowing the child’s voice to be considered and discretion/flexibility for practitioners around when and with whom to share information.  It was suggested that the current system was appropriate and that further legislation was not required, but a greater understanding of and adherence to the existing legislation would be helpful, as it was noted that non-resident parents with PRRs often find it difficult to obtain information and engage in a meaningful way about medical issues without the support of the resident parent.

8.7.17 It was noted that the British Medical Association (BMA) already provide guidance, but that guidance from the Scottish Government could also be helpful.  It was suggested that the content of the guidance would need to cover the privacy rights of the child, risks associated with domestic abuse situations, as well as the duties and responsibilities of corporate parents and the sharing of information with the parents of children in care.  A few also suggested that it should be up to the non-resident parent to seek the information and provide accurate contact details rather than the onus being on health practitioners.

Other Actions

8.7.18 A few individuals who felt that other actions may be more appropriate suggested that having a mandatory need to share information with both parents, or all those with PRRs, was necessary.  This was considered to be required to ensure that decisions regarding information sharing were not coerced by false information given by the resident parent.

8.7.19 It was also suggested that both legislation and guidance may be required.  

No Further Action

8.7.20 Those who felt no further action was required again outlined a range of views, including:

  • that there was no need to change the current system as it provided appropriate levels of access;
  • that information should only be shared with those with PRRs;
  • concerns were raised over who and how it would be determined that sharing information was in the child’s best interests;
  • if/how the preferences of the child would be considered;
  • issues of confidentiality;
  • risks that perpetrators of domestic abuse may use this as a tool to continue the abuse; and
  • that health practitioners should not be involved in disputes between parents and should not have the administrative burden of maintaining contact lists for information sharing purposes:

“Currently, 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.  No further action is required.”  (Local Authority)

8.7.21 Again it was suggested that this issue did not seem to fall within the remit of the 1995 Act, and that wider consultation would be required to ensure that all stakeholders could contribute their views.

8.8 Clarifying that Orders do not Automatically Grant PRRs

8.8.1 The main consultation sought views on whether section 11 of the 1995 Act should be clarified to provide that orders do not automatically lead to PRRs or to a change in PRRs, except from orders specifically in relation to residence or to PRRs themselves.  It was stated that the key aim would be to make it clear that a contact order does not have to grant PRRs.

Q27. 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?

Number Percentage
Yes 99 39%
No 59 23%
No response 96 38%
Total 254 100%

8.8.2 Over a third (38%) of respondents did not provide a response to this question.  Of those who did, most (39%) agreed that such clarification was necessary, while 23% felt it was not.

8.8.3 Several of those who felt that clarification was required indicated that their responses to Q9 of the consultation were again relevant here.  It was suggested that confusion currently exists, with those granted contact sometimes assuming they also had PRRs, and therefore clarity would be helpful.  It was suggested that it was right to keep contact and PRRs as two separate issues, with a few highlighting that contact orders could be sought by a wide range of people, including grandparents and siblings, and therefore clarity that such a contact order did not also confer PRRs was seen as appropriate.  Indeed, a few felt that greater clarity could help encourage other family members who simply want contact to go to court to seek it:

“To ensure the position is clearly understood. It is not at the moment. There is an assumption made that contact means PRR.”  (Domestic Abuse Support Service)

“While this may be clear to legally qualified individuals it does not appear to be so to the broader public.”  (Individual)

8.8.4 Similarly, it was felt that clarity was required for non-parents who acquire a residence order for a child (in the case of kinship and other carers).  It was suggested that such orders do not routinely contain information as to whether PRRs have been granted, making it difficult for carers to access certain services.

8.8.5 Those who felt that clarity was not required, however, generally felt that the law was already clear.  It was suggested that perhaps guidance could be provided (rather than legislative changes), that Sheriffs could ensure the wording of orders were clear (or include greater information within the orders themselves), or that parties could be given information to ensure that people understood what this provided/did not provide.

8.8.6 A few individuals however, felt that all parents should automatically be granted PRRs, while a few organisations suggested that if PRRs were to be granted automatically (as considered at Q19) then such confusion would no longer exist.  

8.9 Turning a Child against a Parent

8.9.1 The consultation document sought views on what action, if any, the Scottish Government should take to try and stop children being put under pressure by one parent to reject the other parent.

Q28. Should the Scottish Government take action to try and stop children being put under pressure by one parent to reject the other parent?

Number Percentage
Yes 143 56%
No 41 16%
No response 70 28%
Total 254 100%

8.9.2 Over half (56%) of all respondents felt that action was required to try and stop children being put under pressure by one parent to reject the other, while 16% felt this was not needed.  The remaining 28% did not provide a response.

8.9.3 Those who considered that action should be taken to tackle such behaviour suggested that trying to influence a child against a parent could be harmful to the child:

“The child is often in the middle between parents, fearful of the consequences of anything they say. They are often afraid, intimidated, experiencing anxiety due to split loyalties and worried for their parent’s wellbeing if they say something that contradicts their wish. We are also aware that children can be coaxed and emotionally abused by the controlling actions of a parent.”  (Local Authority)

8.9.4 It was also reported to be harmful to the parent (with both parents having the potential to suffer), requiring a long and difficult process to maintain contact, and strained relationships with the child from then on:

“Some parents do not have the emotional energy, mental strength, finance or wherewithal to continue to fight, and in these cases contact can break down completely...  Parental alienation is real and needs to be taken far more seriously.”  (Individual)

8.9.5 A wide range of suggested actions were provided by respondents.  Those cited by more than one included:

  • The use of child support/welfare workers to assess whether a parent has attempted to negatively influence their child, support a child to express their own view, and provide impartial information;
  • To provide training on domestic violence and how children can be turned against a parent for all professionals and service providers (particularly for child welfare reporters);
  • Parenting Apart session, family counselling and/or family therapy;
  • Greater use of child psychologists;
  • Mediation for the parents;
  • Education, guidance and information for parents (whilst being mindful not to empower the perpetrators of abuse);
  • Wider campaign to increase public awareness;
  • Grounds for a referral to the Children’s Reporter;
  • It should be made a criminal offence (with several describing it as a form of emotional, psychological, domestic and/or child abuse);
  • Introduce and enforce sanctions (possible suggestions included a reduction/increase in contact time (as appropriate), fines, and in extreme cases imprisonment and transfer of residence);
  • Some form of assessment/wellbeing checklist;
  • Ensure the voice of the child is heard in every case; and
  • Make court processes less adversarial.

8.9.6 Those that were against any actions felt it was inappropriate to make assumptions about the reasons why a child may not wish to see a parent.  Respondents highlighted that a wide range of factors may be involved, including the child’s own views and feelings towards the adult in question (either due to the circumstances of the parents separation or the dynamics in their own relationship with the parent) and valid concerns for the child’s safety and wellbeing:

“This works from the presumption that child rejects a parent because of parental pressure rather than because a child does not want to see them or is frightened with good reason of them.”  (Individual)

“…children are becoming labelled as “alienated” and their voice is being diminished - with assumptions being made that if a child says they do not want contact it must be due to pressure from one parent.  As a result the non-resident parents’ accusations gain more power than the voice of the resident parent or child.”  (Other Organisation)

8.9.7 Several organisations cited that ‘Parental Alienation Syndrome’ had been largely discredited (although a few in support of additional action did not agree with this), with some suggesting that the perpetrators of domestic abuse commonly allege that a child has been turned against a parent in an attempt to control the situation or to continue the abuse.  It was suggested that allegations of alienation are routinely used by abusers to undermine a victims concerns, resulting in exposing children to dangerous situations:

“This is very risky. Abusers are very aware of the term parental alienation. They play the victim and use it as a way of painting the other parent as a monster to continue the cycle of abuse and control.”  (Individual)

“We are aware that perpetrators of abuse often construct the concept of ‘parental alienation’ as a weapon against women in an attempt to twist the truth, manipulate mothers into facilitating contact, and discredit accusations of abuse.”  (Domestic Abuse Support Service)

8.9.8 Some respondents (both for and against action by the Scottish Government) could see no way for legislation to tackle the issue and reduce/stop such a practice, or felt it would be ineffective and unenforceable.  Several organisations felt that the courts were better placed to investigate and tackle such allegations on a case-by-case basis.  A few organisations suggested that in-depth training was required about the dynamics of domestic abuse, its impact on children, and the potential for parental alienation to be used by perpetrators of abuse to manipulate the court and discredit survivors.  

8.10 PRRs and Serious Criminal Convictions

8.10.1 The final question on PRRs invited comments on whether a parent found guilty of a serious criminal offence could potentially have their PRRs removed by the criminal court, (either by application to the criminal court following conviction or courts being given a duty to consider the removal of PRRs when a person is convicted of certain types of offences).

Q29. Should a person convicted of a serious criminal offence have their PRRs removed by the criminal court?

Number Percentage
Yes - by an application to the criminal court following a conviction to remove that person’s PRRs 13 5%
Yes - by giving the criminal court a duty to consider the removal of PRRs when a person is convicted of certain types of offences 63 25%
No - leave as a matter for the civil courts 92 36%
No - another way 16 6%
No response 70 28%
Total 254 100%

8.10.2 Some mixed views were expressed but the most popular response was that this issue should be retained as a matter for the civil courts (36%).  That being said, almost a third indicated that they felt the current situation should change, either by way of court duty (25%) or by application (5%).  Just a small number felt that change should be implemented in another way (6%) and the remainder gave no response (28%).

8.10.3 Among those who felt that giving the criminal court a duty to consider the removal of PRRs was a good idea, the main reasons given in support were that this would protect the best interests of the child and that it would leave courts able to determine relevance of punishment individually, depending on the nature and severity of the crime.  Crimes that were mentioned as being relevant for consideration by the court included physical and sexual assault, in particular, as well as other offences that related directly to the wellbeing of the child concerned.  Other serious criminal offences (such as fraud) which may be less directly damaging to a child's wellbeing or their relationship with the parent may require a different approach by the court, it was suggested.

8.10.4 One respondent indicated that this approach would also give confidence to the remaining parent about PRRs following release of the offending parent:

“By giving the Criminal court a duty to consider the removal of PRRs at the time of conviction it leaves no doubt for the other parent as to what will happen when the offender is released. The whole point of the PRRs is to show the child that they are a responsible adult and have a duty of care to them.”  (Individual)

8.10.5 Removing PRRs for parents who commit serious offences, especially against the child, was also seen as important in providing the child with a sense of confidence and security that their exposure to risk in the future was minimised.

8.10.6 One individual and one domestic abuse support service indicated that such an approach would remove the onus on the innocent parent to need to apply for removal of PRRs (which they felt was important):

“In practical terms, access to civil justice is expensive and out of the reach of most in society. However, it should not be left to those left in care of a child or the child themselves to have to take this action. If a serious offence has been committed, then the court should have a duty to think about PRRs and whether it is in the child's best interests and most importantly safe.”  (Domestic Abuse Support Service)

8.10.7 Similarly, among the small number of respondents who supported an application to the criminal court following a conviction to remove that person’s PRRs, there were views that due consideration would have to be given to each individual situation, as a serious criminal offence might not exclude the parent from acting in the child's best interests in other ways.

8.10.8 Having this measure available, however, would send a strong message about the consequences of the unacceptable parenting behaviours, i.e. to set a good example:

“A person who chooses to commit a serious offence has made a choice. If a child has not been taken into consideration when making that choice then the child is not one of the person’s priorities.  A person who commits violence cannot be considered to be a positive role model for a child.  A person who has committed sex offences would also fall into not being a positive role model.”  (Individual)

8.10.9 A number of respondents commented that it would be important to have the child’s voice represented in any decisions, and one individual indicated that there may be merit in considering reinstatement of PRRs in some cases, so long as there was no risk to the child.  One individual indicated that they felt that a system of criminal court applications could potentially exist alongside civil routes to ensure that, in cases where the child’s voice was against criminal charges, there were still means of ensuring that PRRs could be exercised in a way that benefited the child:

“…there should be a civil process which is fully integrated with the criminal process and involving a safeguarder which should advance alongside the criminal process so that the child is protected and the parental rights adjusted accordingly.”   (Individual)

8.10.10 Among those who felt that the current system should remain unchanged, the reasons given were that it was important that cases were always considered on their individual merits, and that family law Sheriffs working in the civil courts may be more experienced with dealing with such complexities, and understand the nuances which would need to be considered.  They would know, for example, those cases in which removing the PRRs was not appropriate and those cases where criminal involvement did not manifest itself in bad parenting per se:

“The best interests of the child should be paramount and the circumstances of each case should be considered…Just because a person commits a serious criminal offence does not make them a bad parent.”  (Individual)

8.10.11 Again, among this group, the nature of the offence was considered to be an important factor in determining relevance of removing PRRs, with several suggesting that some ‘serious crimes’ which did not directly involve the child would not make a parent unfit.  Crimes against the child (especially physical harm) were again seen as being an indicator of where removal of PRRs would be appropriate, however.  Overall, parenting in general, was considered to be a civil matter which should remain as such with attempts to rehabilitate and stabilise families, wherever possible, rather than punish them:

“In Scotland, we do not use their children as way of punishing errant parents and governments that do are rightly subject to international condemnation. The removal of PRRs is predicated on what will serve the child’s welfare, taking account of the child’s views. If the thinking behind this question is that some offences indicate that the parent poses a risk to the child, then there is already the remedy of removing PRRs in a civil court. Criminal courts are not the appropriate place to make that decision.”  (Individual)

8.10.12 Other considerations noted by respondents who said no to this question included the perceived long duration and costs of criminal proceedings, the complexities of adding criminal proceedings alongside civil proceedings, and the prospect that children were less likely to be given a say in criminal proceedings, i.e. their voice was likely to be hidden.  The civil court was also described by one respondent as being a more “child friendly” environment and others too stressed that this was a more appropriate forum for the matter at hand:

“A criminal court is not the appropriate forum to consider children’s rights.  They need to be considered on the basis of the child’s best interests, taking into account their views, in a setting where this is the primary focus.  Removal of parental rights inevitably impacts upon the rights of the child and this must never be used as a criminal sanction.”  (Children’s Organisation)

8.10.13 Creating a clearly defined and objective list of what may be deemed ‘serious criminal offences’ may also be problematic and this was stressed by several respondents, as the seriousness of the crime may not correlate with the impact on the child:

“…we do not support the proposal that there should be an automatic removal of parental responsibilities and rights, but each case should be assessed independently to understand the context in which the ‘serious criminal offence’ occurred. We are aware of individuals who have committed serious criminal offences yet are doting parents, thus in itself the committal of a serious criminal offence does not make someone a bad parent. As noted, the views of the child are crucial.”  (Local Authority)

8.10.14 Overwhelmingly, as with other parts of the consultation, the views expressed supported protecting the best interests of the child, and the current situation which allows an application via the civil court to remove PRRs was seen as sufficient.  It allowed matters to be determined with the child's best interests at the heart of the decision-making process.  It was suggested by respondents from the legal profession, public bodies and individuals alike that removal without consideration of the best interests of the child may run contrary to the provisions of the UNCRC and may infringe the child’s as well as the parent’s Article 8 rights.

8.10.15 A final comment made by just one respondent was that the proposed change may impact negatively on applications for legal aid and add complexity to the legal aid process.

8.10.16 Among those who said that this issue should be addressed in another way, there were no substantive suggestions for alternative approaches (except that leaving such considerations for the civil court was preferable).  A more general comment was made by one children’s organisation that a much more detailed and in-depth consultation exercise may be required in this area and another suggested that a “blanket policy” must be avoided.  One response from within the legal profession agreed that more consideration was required and suggested that, at most, consideration could be given to legislating to enable the criminal court, following conviction, to refer the matter to a civil court for consideration.


Contact

Email: family.law@gov.scot