Parental responsibility (access and custody)
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In the nations of the European Union and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child and either of the child's parents or those adults who have a significant role in the child's life. The terminology for this area of law now includes matters dealt with as contact (visitation in the United States) and residence (see Residence in English law) in some states.
Parental responsibility in European states
In Scots law, issues relative to parental responsibilities are dealt with under the Children (Scotland) Act 1995, which provides for the making of 'residence' (custody), 'contact' (access), and 'specific issue' orders. These may be applied for by anyone with an interest in a child, not merely parents ( reference). Under section 1 of the 1995 Act, parental responsibilities are, where practicable and in the best interests of the child, to:
- safeguard and promote the child’s health, development and welfare;
- provide the child with appropriate direction and guidance;
- maintain personal relations and direct contact with the child;
- act as the child’s legal representative.
These responsibilities last until the child is aged 16, with the exception of the responsibility to provide the child with appropriate guidance, which lasts until the child is aged 18. Under section 2 of the 1995 Act those with parental responsibilities are given corelative rights to allow them to fulfil those responsibilities. These rights are:
- to have the child living with him or her or otherwise to regulate the child’s residence;
- to appropriately control, direct or guide the child’s upbringing;
- if the child is not living with him or her, to maintain personal relations and contact with the child on a regular basis;
- to act as the child’s legal representative.
Having PRRs entitles a parent to take key decisions relating to the child, such as where they will live and go to school, and what medical treatment they should receive. In addition, parents have an obligation to provide financial support for their children under the Family Law (Scotland) Act 1985 (c 37) and the Child Support Act 1991 (c 38). In certain circumstances, this obligation continues when the child in question is beyond the age at which the parents have parental responsibilities under section 1 of the 1995 Act. The child’s mother (irrespective of whether she is married to the child’s father (s3(1)(a))) and the child’s father (but only if he is “married to the mother at the time of the child’s conception or subsequently” (s 3(1)(b))) have automatic rights. A married father’s PRRs continue after divorce, unless they are specifically removed by a court. Unmarried fathers, stepparents and others must either make a Section 4 Agreement, or apply to the court under section 11 for rights.
In line with Scottish Law Commission proposals in 1992, the Family Law (Scotland) Act 2006 has now brought Scots law in line with English law to the extent that an unmarried father will obtain parental rights and responsibilities if he is registered as the father on the birth register. It is thought that this position does not go far enough to take into account the rights of the father to be considered equally to the mother, and of the child, to have recognised both parents.
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