2 Children and parents, responsibilities and rights
Background to children's legislation in Scotland
The UK has a strong tradition of publicly provided welfare services, underpinned by central direction through legislation and guidance, regulation and inspection. 1 In the twentieth century public policy shifted from its Poor Law origins with a focus on removing children from failing parents, providing them with subsistence and equipping them to earn a living, to a concern for children's welfare, resulting in substantial growth in public authorities' statutory responsibilities. 2
In England, the Children and Young Persons Act 1969 created new disposals for children who appeared before the courts for offending, including orders placing them in residential care or under supervision, and transferring approved schools to local authority control. In Scotland, the Kilbrandon Committee recommended a unified system of lay tribunals with responsibility for making decisions about both children in need of care and protection and young people who commit offences, the children's hearings, established by the Social Work (Scotland) Act 1968. 3
During the last three decades a series of failures in services for children and child deaths focused critical attention on professional practice in child care and protection. At the same time concerns emerged about agencies' emphasis on child protection at the expense of preventive services for families, and research highlighted the poor outcomes for many children in care. Reform of children's legislation across the UK in the late eighties and early nineties sought to tackle these problems and strengthen parents' responsibilities for their children. In Scotland the findings of public inquiries into the removal of children in Orkney and child care policies in Fife, and national reviews of family and adoption law, residential care and aspects of the children's hearing system informed proposals for law reform later enacted in the Children (Scotland) Act 1995. 4 Although Scotland maintained its integrated approach to child welfare and offending, the 1995 Act introduced court orders for children's assessment or removal from their families, and extended parents' and children's rights of appeal against decisions of courts and children's hearings. It removed local authorities' power to acquire parental rights over children in care by Council resolution, without authorisation by a court. Based on the principle that any intervention by a public authority in the life of a child should be properly justified and supported by services from all relevant agencies working in collaboration, legislation sought to make public authorities more accountable to families and to each other. 5
The Act sought to promote a child-centred ethos, replacing legal terms such as access and custody with 'contact' and 'residence', and sought to remove the stigma of public care by reference to local authorities 'looking after' children. It emphasised that local authorities should act corporately with all departments sharing responsibility for promoting the welfare of looked after children, and work in partnership, with parents and children, and with other agencies providing health and welfare services. The United Nations Convention on the Rights of the Child strongly influenced provisions requiring children to be consulted, and their views to be taken into account, when parents, children's hearings and public authorities make decisions which affect them. Public authorities include local authorities, education and health services and the courts.
Statutory definitions of 'child'
The law has always recognised that, as they mature, children exert increasing independence and control over many aspects of their lives. 6 When defining a child and whether he or she can enter into a transaction having legal effect, 7 the law reflects this evolving capacity. 8 Legislation provides various upper age thresholds at which a person is defined as a child, according to the objective to be achieved. 9
A child has legal personality as soon as, but not before, it is born. 10 An unborn child cannot be made the subject of a supervision requirement or a court order, although grounds for legal proceedings once a child is born may be based on parents' acts or omissions during pregnancy. 11 Once born a child can own property or engage in legal proceedings through a legal representative, normally a parent. A parent of a child who has sustained pre-birth injury through negligence or fault may sue the responsible person or organisation for damages on the child's behalf, but only if the child is born alive. 12
Legislation defines the age at which children may take certain kinds of decisions and act independently of their parents or carers in ways that have legal effect. 13 In Scotland a young person becomes an adult at 18 years. 14 At 16 years young people may choose where they live, 15 may marry 16 and may buy cigarettes, 17 but they may not drive a car until aged 17 years 18 and they may not vote in an election 19 or buy alcohol until aged 18 years. 20
A child under 16 has no active 'legal capacity' to enter into legal transactions, essentially prohibiting a child from acting independently of their parents, guardian or carer other than in prescribed circumstances. 21 The Act provides for the following exceptions:
- a child under 16 may enter into legal transactions of a kind commonly entered into by persons of his age and circumstances, on terms which are not unreasonable. This enables a child under 16 to enter into routine contracts; for example to make minor purchases, travel independently, have a bank account and be employed for part-time work 22
- a child under 16 may consent on his own behalf to any surgical, medical or dental procedure if a qualified medical practitioner deems him capable of understanding the nature and the possible consequences of the procedure or treatment 23
- may instruct a solicitor in connection with any civil matter if he or she has a general understanding of what it means to do so. 24 This is unlikely to be a prohibitive test; the child's knowledge that a solicitor could explain the law and represent the child in court is likely to be sufficient to indicate understanding 25
These provisions enabling children to consent to medical treatment and to enter into legal proceedings give statutory expression to 'Gillick competence', a concept which stemmed from a House of Lords ruling in an English appeal case, that a child under 16 could give valid consent to medical treatment provided that he or she was sufficiently mature and understood the nature and consequences of such treatment. 26
A person over 12 years may:
- make a will 27
- consent to the making of an adoption order or an order freeing him or her for adoption (and an order may not be made without the child's consent unless the court dispenses with the child's consent) 28
- be presumed to have sufficient age and maturity to instruct a solicitor; if a child has legal capacity to instruct a solicitor, he or she shall also have legal capacity to sue or to defend in any civil proceedings 29
A person over 16 years has full legal capacity to enter into any legal transaction. Nevertheless the law recognises that young people need a degree of 'special care and protection' until they reach adulthood. 30 Provided the young person is not yet 21 years old, a court may set aside a legal transaction he or she entered into when aged between 16 years and 18 years if the transaction is substantially and materially prejudicial to the young person's interests. 31 A prejudicial transaction is one which an adult exercising reasonable prudence would not have entered into were they in the young person's circumstances at the time of the transaction, and it has caused or likely to cause substantial prejudice to the young person's interests. 32
The Children (Scotland) Act 1995 describes the duties and responsibilities of parents and public authorities towards children at different stages of their development. The Act also uses a number of different age thresholds when defining a 'child'. For the purposes of Part I of the Act a child is a person under 18 years. 33 However provisions in Part I concerning parental responsibilities and rights, guardianship and legal proceedings in respect of a child's residence define a child as a person under 16 years. 34 The parental responsibility to provide guidance to the child subsists until a young person is 18 years old. 35
Similarly the definition of 'child' varies in Part II of the Act. For the purposes of Chapter 1 concerning support and services for children and their families, including the provision of accommodation for children, and Chapter 4 concerning local authority applications for parental responsibilities orders and miscellaneous issues, a child is defined as a person aged under 18 years. 36 For the purposes of Chapter 2 concerning children's hearings, and Chapter 3 relating to the protection and supervision of children, a child is usually defined as a person under 16 years. However, 16 and 17 year olds may be defined as children under the Act if they are the subject of supervision requirements, or they are have attained the age of 16 but are still of school age and have failed to attend school regularly without reasonable excuse, or if they are subject to court orders made in other UK courts, are now resident in Scotland and the order is given effect as if it were a corresponding order under Scots law. 37
In summary, legislation tends to limit protection for, restrictions on, or control over children and young people to those aged less than 16 years. Statutory provision for support and services generally extends to young people under 18 years, especially where targeted towards young people identified as vulnerable or disadvantaged by family or personal problems, disability or other difficulties. In some circumstances, duties and powers to provide support and resources apply to young people well beyond 18 years. 38 As they grow up, looked after children have increasing rights to make decisions and act independently, subject to reasonable direction by persons or a local authority with parental responsibility until they reach 16 years. Being looked after does not alter a child's legal personality or legal capacity.
Parents' responsibilities and rights
The Act describes the legal responsibilities and rights in respect of children which should be discharged by parents or others with the care of children who are acting in a parental capacity. The parental responsibilities are:
- to safeguard and promote the child's welfare
- to provide direction and guidance appropriate to the stage of the child's development
- where a parent is not living with the child, to maintain personal relations and direct contact with the child on a regular basis
- to act as the child's legal representative 39
Parental rights correspond to parental responsibilities and are conferred only to the extent required to enable parents to fulfil their parental responsibilities. Parental rights are not enforceable, for example giving rise to liability in damages for breach if these are infringed, 40 but are more akin to parental powers legitimately exercised in accordance with the welfare of the child. 41 Parents may discharge their responsibilities 'only in so far as compliance is practicable and in the interests of the child'. 42
The parental rights are:
- to have the child living with him or to otherwise regulate the child's residence
- to control, direct or guide the child's upbringing (in a manner appropriate to the stage of development of the child)
- to maintain personal relations and direct contact with the child on a regular basis
- to act as the child's legal representative 43
The Children (Scotland) Act 1995 defines a child's parents as his or her genetic father or mother, or persons who should be treated as such. 44 Mothers automatically have parental responsibilities and rights. 45 Fathers married to the mother at the time of the child's conception, or at any time subsequently also have parental responsibilities and rights. 46
The Children (Scotland) Act 1995 uses the term 'relevant person' to identify people who should be consulted and involved in planning for looked after children and are entitled to have a role in children's hearings or legal proceedings concerning the welfare and protection of children. A relevant person may be a parent with parental responsibilities or rights, a person who is not a parent but has been given parental responsibilities under Part I of the Act, or a person who appears to ordinarily have charge of, and control over, the child, likely to be a person with whom the child normally resides. 47
A child's 'family' is defined as including persons with parental responsibility and any other person with whom the child has been living, which may include extended family members without parental responsibility, such as grandparents or indeed people who are not related to the child. 48 It does not, for the purposes of the Act, include people without parental responsibility with whom the child has never been resident but who may nevertheless be very important to the child.
In Scotland, birth fathers who are not married to the child's mother do not have automatic parental rights and responsibilities. They have parental rights and responsibilities as the father on the child's birth certificate on or after 4th May 2006. 49 They may also acquire parental responsibilities and rights by formal agreement with the mother 50 or by a court order. 51
Unmarried fathers do have some rights to be involved in children's hearings. If resident with the mother, the unmarried father is entitled to attend all stages of the hearing 52 and receive copies of information and reports. 53 He may be defined as a relevant person. He may also fall within the Act's definition of 'family' and therefore be someone with whom a local authority looking after a child should promote contact. 54 He may be appointed as the child's guardian of the child.
Unmarried fathers have no right to consent or refuse consent to an order freeing the child for adoption or an adoption order. Nevertheless a court hearing a freeing application, must consider whether the unmarried father has any intention of applying for any parental responsibilities and rights and whether the application would be likely to be refused, before making any freeing order. 55 Sheriff Court and Court of Session rules provide for notice of freeing application to be given to any person claiming to be the child's father if the local authority knows his whereabouts.
Either parent or any person with parental rights and responsibilities may exercise a parental right without the consent of any other person with the same rights unless this is prohibited by decree or deed, essentially a court order or a document with legal effect. 56 Non resident parents with parental responsibilities and rights may act as a child's legal representative. 57 Young parents who are themselves under 16 years have parental responsibilities and rights and may exercise these to the extent that they have legal capacity to do so. 58 For example the legal capacity of young parents to act as their child's legal representative transfers to the young person's own legal representative that is the young person's parent, guardian or equivalent. 59 Parent(s) may appoint a guardian, in the event of their death, 60 and the appointed guardian acquires all the parental responsibilities and rights until the child attains 18 years. 61
Effect of being looked after on parental responsibility and rights
Looking after a child imposes duties on the local authority and gives the local authority the necessary powers required to fulfil those duties. It does not affect the child's legal status, or remove or reduce the responsibilities and rights of any other person in respect of the child. 62 Neither does a local authority acquire parental responsibilities and rights when a supervision requirement or court order is made. This contrasts with the position in England and Wales, where the local authority acquires parental responsibility for a child subject to an interim or full care order and shares this with the child's parent(s). Although the parents do not lose their parental responsibility, the local authority may determine the extent to which parents may exercise their parental responsibility. 63 In Scotland only a children's hearing or a court may limit parents' exercise of their parental responsibilities and rights. A supervision requirement or child protection related order may temporarily affect how a parent exercises their responsibilities and rights, by directing where a child may reside, regulating a parent's contact or limiting their powers to make decisions on behalf of the child. In practice the local authority has considerable discretion in how they discharge their statutory responsibility to give effect to a supervision requirement. Parents may do anything that is incompatible with a court order or supervision requirement. 64
Parental responsibilities and rights may be reduced or removed only by the making of
- an order under section 11 of Part I of the Act
- a parental responsibilities order 65
- a order freeing the child for adoption 66
- an adoption order 67
There are very few requirements placed upon parents when their child is looked after. They must keep the local authority informed of their whereabouts. Anyone who has parental responsibilities for the child must inform the local authority of their change of address without unreasonable delay. 68 Parents may not remove their child from a placement suddenly or without warning if he or she has been accommodated for more than six months. 69 Any person with parental responsibility may have to contribute to the cost of their child's maintenance whilst looked after by the local authority away from home, even if the child is being looked after against the parent's wishes. 70 Persons on income support are exempt from liability for their child's maintenance. If the child is over 16, he or she may be liable to contribute to the cost of his or her own maintenance.
The local authority must notify a parent or any other person with parental responsibility or any relevant person when they decide to end a placement and the date on which the placement was, or will be, terminated. 71
The Scottish Parliament has introduced new powers to require parents to take specific action in order to better meet their children's needs. 72 If a child or young person is involved in persistent antisocial or criminal behaviour, or action is needed to improve his or her welfare, a court may make a parenting order requiring a parent to comply with any requirements specified in the order for up to 12 months. 73 The parent must also attend counselling or guidance sessions as directed by the local authority responsible for supervising the order, for up to three months whilst the order is in force.
Before deciding whether to make a parenting order, the court should seek and have regard to the child's views, give the parent an opportunity to be heard and consider information about the parent's family circumstances. 74 It should look at any voluntary action the parent has taken to address the child's problems and any other parental behaviour it thinks relevant. 75 Children whose parents are subject to a parenting order may or may not be looked after by the local authority. Nevertheless it is likely that the local authority or the children's hearing will have had previous contact with the child and family. A parenting order may be applied for only when all attempts at persuading or supporting the parents to act voluntarily in support of their child have failed.
In 2005 the Scottish Executive issued non statutory guidance on the legal provisions for parenting orders to the agencies required to implement the orders. 76 The Scottish Executive plans to issue further non statutory guidance giving advice to professionals and practitioners about when and how to use parenting orders later in 2006.
Adults with incapacity
Legal incapacity, for example because of learning disabilities or mental health problems does not affect a person's status as a parent. In considering any intervention in the affairs of an adult with incapacity there is a requirement to consult and have regard to the views of the person's nearest relative, primary carer and anyone else with an interest in the adult's welfare or the proposed intervention. 77 This should include any children affected by their parent's incapacity. The local authority has a duty to look after a child where there is no one able to provide suitable accommodation or care for whatever reason.
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