This weekend, lots of people will be celebrating Father’s Day. Fathers will be relaxing, spending time with their children and hopefully having a well deserved rest. However, for certain children, they will not be spending time with their fathers on Father’s Day and their fathers have no rights to have contact with them.
The right to maintain contact with your child is one of the parental rights a person can acquire under the Children (Scotland) Act 1995. A father automatically has parental rights and responsibilities in relation to his children if he was married to the mother at the time of the child’s birth or subsequently. As well as having the right to maintain contact with a child, a person with parental rights has the right to control, direct or guide a child’s upbringing, to act as a child’s legal representative, and, if not living with the child, to regulate the child’s residence. Rights go hand in hand with parental responsibilities, which include the responsibility to maintain contact with a child, to safeguard and promote their health, development and welfare, to provide direction and guidance to them and to act as their legal representative.
So, if a father is not married to the birth mother, how can that person obtain parental rights and responsibilities or indeed simply contact with a child? Parental rights and responsibilities can be granted by the birth mother to the biological father if both parties sign a written agreement known as a Section 4 Parental Responsibilities and Rights Agreement. This can only be entered into by the biological parents and once it is signed and registered the biological father will have the same rights as the child’s mother. Alternatively a father can apply to the court to obtain an order for some or indeed all parental rights and responsibilities in relation to a child.
It is always preferable if parents can reach a voluntary agreement regarding contact between a child and an absent parent. There is a general view that it is better for a child to maintain a relationship with an absent parent than have no relationship with that person. However the law does not go so far as to say there is a legal presumption that an absent parent should have contact and each case will very much depend on its own facts and circumstances.
In determining any question of parental rights and responsibilities, the courts has to consider the welfare of the child as the paramount consideration. The child’s welfare will take priority over any right that a parent might wish to exercise in relation to contact. The court also has to have regard to the views of the child if they are known, and the age of the child is clearly important here. The Act provides that a child aged 12 or over is of sufficient maturity to have a view, although a court will often ask for the views of younger children. Finally, in deciding to make any award of parental rights and responsibilities the court has to consider whether it is better to make an order than make no order.
The Scottish Government are currently carrying out a review of the Children (Scotland) 1995 and are seeking views on reforming the law relating to parental rights and responsibilities. The consultation paper is available at www.gov.scot and seeks views on a number of important topics which might radically alter the family law landscape. Among the many issues under consideration are –
- How to best ensure that children’s views are heard in court cases.
- Whether all fathers should automatically be granted parental rights and responsibilities.
- Whether there should be a presumption in law that a child benefits from both parents being informed in their lives.
The consultation document extends to over 200 pages and suggests some wide ranging and radical changes to family law, not just in relation to rights of parents. Views are also being sought on rights for grandparents, stepparents as well as a wide ranging look at whether the law as it current stands is best placed to protect the rights of children and promote family life.
The closing date for the consultation is 7 August 2018. It may be some time off before there are any radical changes to the law but it certainly looks like changes are afoot and this could have a potentially huge impact for those seeking contact with their children.
Elaine Sym is a Family Law Solicitor. We are always delighted to talk without obligation about whether we might meet your needs. Call Elaine on 01307 466886 or email esym@thorntons-law.co.uk
