The Scottish Parliament and Scottish Parliament Infor mation C entre l ogos .

SPICe Briefing

Parenting when parents live apart 31 March 2015

15/17

Sarah Harvie-Clark

The purpose of this briefing is to support MSPs in their constituency casework relating to legal issues associated with parenting when parents live apart. The issues covered include:

what rights unmarried fathers have in relation to their children

how disputes about the care of children can be resolved

whether a parent can act unilaterally to change his or her child’s name

the process for proving the paternity of a child

the legal remedies available where a child who lives with one parent is abducted by the other parent

Please note that SPICe can only provide general information relating to the law of Scotland. If a constituent wishes to receive legal advice in relation to the circumstances of his or her individual case he or she should contact a solicitor.

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CONTENTS

EXECUTIVE SUMMARY .............................................................................................................................................. 3

Parental responsibilities and rights ...................................................................................................................... 3 The child’s views .................................................................................................................................................. 3 Court orders ......................................................................................................................................................... 3 Breaches of contact orders .................................................................................................................................. 3 School reports ...................................................................................................................................................... 3 The child’s name .................................................................................................................................................. 4 The paternity of a child ......................................................................................................................................... 4 Child abduction .................................................................................................................................................... 4

PARENTAL RESPONSIBILITIES AND RIGHTS – AN OVERVIEW .......................................................................... 6

WHAT ARE PARENTAL RESPONSIBILITIES AND RIGHTS? ............................................................................... 6 REGISTERING A CHILD’S BIRTH .......................................................................................................................... 6 WHO HAS PARENTAL RESPONSIBILITIES AND RIGHTS? ................................................................................. 7

Automatic PRRs ................................................................................................................................................... 7 How an unmarried father can acquire PRRs ....................................................................................................... 7

OTHER TYPES OF SECTION 11 ORDERS ........................................................................................................... 8 SECTION 11 ORDERS – GUIDING PRINCIPLES .................................................................................................. 8

DEALING WITH SPECIFIC DISPUTES ABOUT PARENTING .................................................................................. 9

RESIDENCE AND CONTACT ................................................................................................................................. 9 Reaching agreement without going to court ........................................................................................................ 9 Section 11 orders ............................................................................................................................................... 10 Other sources of support.................................................................................................................................... 10 Developments in England and Wales ................................................................................................................ 10

WHEN A PARENT WILL NOT COMPLY WITH A CONTACT ORDER ................................................................. 11 The law in Scotland ............................................................................................................................................ 11 Developments in England and Wales ................................................................................................................ 12

SCHOOL REPORTS .............................................................................................................................................. 12 The Pupils Educational Records (Scotland) Regulations 2003 ......................................................................... 12 Guidance on the topic ........................................................................................................................................ 13 Other educational issues.................................................................................................................................... 13

A CHILD’S NAME ................................................................................................................................................... 14 The distinction between changing a name and recording a name change ....................................................... 14 Changing a child’s name .................................................................................................................................... 14 Recording a child’s change of name .................................................................................................................. 15

THE PATERNITY OF A CHILD .................................................................................................................................. 16

Legal presumptions associated with the paternity of a child.............................................................................. 16 Declarators of parentage and DNA testing ........................................................................................................ 16

CHILD ABDUCTION .................................................................................................................................................. 17

WITHIN SCOTLAND .............................................................................................................................................. 17 OUTWITH SCOTLAND BUT WITHIN THE UK ...................................................................................................... 18 OUTSIDE THE UK ................................................................................................................................................. 18

UK law ................................................................................................................................................................ 18 The international aspect ..................................................................................................................................... 19

SOURCES OF HELP AND SUPPORT .................................................................................................................. 20

SOURCES .................................................................................................................................................................. 21

RELATED BRIEFINGS .............................................................................................................................................. 28

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EXECUTIVE SUMMARY

Parental responsibilities and rights

Much of the legal framework relevant to the main parenting issues of parents who live apart can be found in the Children (Scotland) Act 1995 (‘the 1995 Act’). This provides for a range of parental responsibilities and rights (‘PRRs’) in respect of all children living in Scotland. PRRs exist where practicable and in the best interests of the child.

A range of people automatically have PRRs in respect of a child, including 1) the child’s mother; 2) the child’s father where he was married to the child’s mother at the time of the child’s conception or subsequently; and 3) the child’s father where he is registered as the father of a child on or after 4 May 2006. Fathers not falling into any of these categories can acquire PRRs by other methods, including by application to the court under section 11 of the 1995 Act.

The child’s views

The child has a right to have any views he or she wishes to express taken into account, in light of the child’s age and maturity. This applies not only in court proceedings (1995 Act, s 11(7)(b)) but also when anyone (usually a parent) is making a major decision on PRRs (1996 Act, s 6(1)).

Court orders

Section 11 of the 1995 Act provides for a range of court orders relating to PRRs. These include a ‘residence order’ which stipulates where a child should live, if the parents cannot agree. Similarly, a ‘contact order’ sets out the arrangements for contact between a child and a person that the child does not live with. A ‘specific issue order’ can be used to address a particular issue in dispute between the parents. Examples include where a child goes to school and what type of medical treatment he or she should receive. In making any court order under section 11 the welfare of the child is the paramount consideration.

Breaches of contact orders

Breaches of contact orders can be difficult to enforce. A parent who is not complying can be held in contempt of court, with the possibility of a fine or imprisonment. However, the courts are reluctant to resort to a prison sentence. The existing living arrangements for the child can also be varied to the detriment of the parent in breach, although the welfare of the child remains the key consideration.

School reports

Receiving copies of school reports is a particular issue which sometimes causes problems for parents living apart from their children. However, a ‘parent’ (a term defined very broadly in the relevant legislation) has a general right of access to a child’s school reports. There is a limited

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exception where, in the opinion of the relevant local authority, this would cause ‘significant distress or harm’ to the child or another person.

The child’s name

The desire to change a child’s name (particularly a surname) after a separation or divorce is an issue which can leave the parents in dispute. In Scots law there is a distinction between changing a child’s name (which requires no formalities as such) and recording that change so it is reflected on the child’s birth certificate. In relation to the first one, there are two relevant provisions of the 1995 Act. In the first place, under section 2, if two or more people have PRRs each can generally exercise a parental right without the consent of the other. However, under section 6, the views of the child and anyone else with PRRs must be taken into account, so far as practicable, in relation to major decisions about PRRs. If a parent with PRRs unilaterally changes a child’s name, or has indicated that he or she intends to do it, then the matter may have to be resolved by way of a ‘specific issue order’ granted by the court. When it comes to applying to record a name change on a birth certificate for a child under 16, the law says that both parents with PRRs must make the application. As Scottish parents have to interact with UK bodies such as HM Passport Office, there are sound practical reasons why they might want to formalise a child’s name change via amendment to the birth certificate.

The paternity of a child

A man seeking to establish that he is the father of a child can raise an action for a ‘declarator of parentage’ in the local sheriff court or the Court of Session in Edinburgh. DNA evidence is the main source of evidence in such actions. However, for results with a high degree of reliability, paternity testing requires a sample from the child’s mother, the man in question and the child.1 A civil court in Scotland cannot compel a competent adult to commit to a blood test or any other test involving bodily interference. It can only request that he or she does so and draw such inference from a refusal as it thinks is appropriate.

A further issue is that in many cases a child may be too young to provide his or her own consent to the test. Yet the main category of individual who can consent to the test on behalf of a child is a parent with PRRs. In paternity disputes, often only the mother of the child falls into this category. This can cause additional difficulties for the father if the child’s mother is unwilling to cooperate.

Child abduction

Where a parent (or other person or body with PRRs) takes a child, or fails to return him or her after an authorised visit, this is child abduction. For abduction within Scotland and within the UK the civil courts and the police can assist with the return of the child. Even where a parent has PRRs, he or she is prohibited from taking the child out of the UK without the consent of the other parent or other person or body exercising PRRs, or without

1 Some companies offer paternity tests that only require samples from the child and the man (sometimes called

motherless testing). Results from tests like this are less accurate: http://www.nhs.uk/chq/pages/1017.aspx?CategoryID=61&SubCategoryID=615

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receiving the consent of the court. Where the child is already the subject of a court order relating to his or her residence, or a court order is in place prohibiting the removal of the child from the UK, a criminal offence can be committed by a parent in breach. The 1980 Hague Convention on International Child Abduction, supplemented within the EU by Council Regulation 2201/2003 (‘the Brussels IIa Regulation’), provides mechanisms to support the return of an abducted child from countries which are parties to these legal instruments. The central authority for each country takes a key role in facilitating the return of the child, usually without cost to the parent seeking the return. In Scotland, the Scottish Ministers are designated the central authority, whose functions are carried out by officials in the Justice Directorate of the Scottish Government. A number of countries outwith the EU are not party to the 1980 Hague Convention. Securing the return of a child in this type of situation is much more difficult and potentially very costly. However, for these countries, the Foreign and Commonwealth Office and the charity Reunite International can provide support and assistance to the left behind parent. Reunite International has also produced a very helpful Child Abduction Prevention Guide for Scotland, setting out what to do if a person fears their child is in danger of abduction.

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PARENTAL RESPONSIBILITIES AND RIGHTS – AN OVERVIEW

WHAT ARE PARENTAL RESPONSIBILITIES AND RIGHTS?

When parents separate or divorce, or indeed have always lived apart, much of the legal framework relevant to their parenting issues can be found in the Children (Scotland) Act 1995 (‘the 1995 Act’). This provides for a range of parental responsibilities and rights (‘PRRs’) in respect of all children living in Scotland. PRRs exist where practicable and in the best interests of the child (1995 Act, sections 1 and 2).

PRRs include the right to have the child live with a person having PRRs. Furthermore, where the child does not live with that person, there is both the right and the responsibility to have contact with that child (1995 Act, section 1(1)(c) and section 2(1)(a) and (c)).

There is also a responsibility to safeguard and promote a child’s health, development and welfare (1995 Act, section 1(a)). Furthermore, there is a PRR to control, direct or guide the child’s upbringing in an age appropriate way (1995 Act, section 1(1)(b) and 2(1)(b)). Consequently, a range of day to day decisions about a child’s life falls within the scope of PRRs, such as those to do with his or her education, religious upbringing or medical treatment.2

REGISTERING A CHILD’S BIRTH

It may be helpful to provide some background about the registration of a child’s birth as this has legal consequences in relation to both PRRs and also how the law approaches the paternity of the child. (Both topics are explored in more detail in later sections of this briefing.)

When a child’s birth is registered, there is no requirement for the father’s name to be entered in the Register of Births (and therefore to appear on the birth certificate). Where the father’s name does not appear, this is referred to as a ‘sole registration’; where it does appear this is referred to as ‘joint registration’.

Where the parents are not married either parent can go to the registrar’s office to jointly register the birth as long as the person going can present official documents signed by both parents and acknowledging the man as the father of the child (Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c 49)(‘the 1965 Act’), section 18).3

The number of sole registrations in Scotland every year has remained reasonably constant over the last thirty years, at only around 5-7% of all births.4 However, over the same time period there has been a big increase in joint registrations by unmarried parents and an equivalent decline in the number of joint registrations by married parents. In 1974 91% of all births were joint registrations to married parents and only 4% were joint registrations to unmarried parents. This can be contrasted with the position in 2013 where 49% of all births were joint registrations to married parents and 47% were joint registrations to unmarried parents.

The figures also show that a joint registration by cohabitants, as opposed to joint registrations by parents living at different addresses, is increasing. In 1996 (the first year the relevant data on

2 PRRs also include the right and responsibility to act as the child’s legal representative (1995 Act, section 1(1)(d)

and section 2(1)(d)). 3 The mother can also carry out a joint registration where she has a court order declaring that the man is the father

of the child (Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c 49), section 18(1)(b)(ii)). 4 The last twenty years has seen a small but steady decline in the number of sole registrations, from 7.1% in 1992

to 5% in 2013.

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parents was kept) joint registrations by cohabitants were 68% of all joint registrations by unmarried parents. By 2013, they represented 74% of that total.5

The Scottish Government (2008) has published an information leaflet promoting joint registrations of births.

WHO HAS PARENTAL RESPONSIBILITIES AND RIGHTS?

Automatic PRRs

A range of people automatically have PRRs in respect of a child, including (1995 Act, section 3; 1965 Act, section 18):

the child’s mother;

the child’s father where he was married to the child’s mother at the time of the child’s conception or subsequently; and

the child’s father where he is registered as the father of a child on or after 4 May 2006

The third category was created as a result of amendments to the original legislation made by the Family Law (Scotland) Act 2006 (asp 2).

How an unmarried father can acquire PRRs

Other than by marrying the child’s mother (mentioned above) an unmarried father who did not originally have PRRs can acquire PRRs by three methods.

Re-registration

Unmarried fathers who did not originally appear on their child’s birth certificate can apply for ‘re-registration’ (1995 Act, section 3; 1965 Act, section 18). After re-registration, the child’s birth certificate will show the man in question as the child’s father. Providing this is done on or after 4 May 2006, re-registration confers PRRs on the unmarried father. However, a key point to note is that this process requires the co-operation of the child’s mother. Re-registration in order to confer PRRs is not open to unmarried fathers who a) had always appeared on their child’s birth certificate; and b) whose child was born prior to 4 May 2006. These unmarried fathers must use other methods of acquiring PRRs. More information about the process of re-registration can be found in this guide maintained by the National Records of Scotland.

Registering an agreement with the child’s mother

In a similar vein, it is also possible to register an agreement with the child’s mother in the Books of Council and Session (1995 Act, section 4). The Scottish Government’s website provides a copy of the form which must be completed, along with information about the form and the legal consequences of registering it.

5 See further: http://www.nrscotland.gov.uk/files//statistics/ve-ref-tables-2013/2013-ref-table-3-2.pdf

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Court order under section 11 of the 1995 Act

A father can also apply to the court under section 11 of the 1995 Act for a court order granting him some or all of the PRRs.

Unmarried fathers may choose this method where the co-operation of the child’s mother is not forthcoming. However, if an unmarried father has not established paternity he may face difficulties over the DNA testing of a young child (see below).

OTHER TYPES OF SECTION 11 ORDERS

Section 11 of the 1995 Act provides for a range of other court orders relating to PRRs. For example, if parents can’t reach agreement about the arrangements for the parent who the child does not live with to see the child, the court can grant a ‘contact order’ stipulating future arrangements in this regard. Similarly, where the residence of the child is in dispute, the court can also make a ‘residence order’ determining this issue. In addition, the court can also make an order under section 11 removing some or all of an individual’s PRRs. It can also make such an order to resolve a particular issue associated with PRRs that the parents are disagreeing about (‘a specific issue order’).

SECTION 11 ORDERS – GUIDING PRINCIPLES

In considering whether to grant any court order under section 11 of the 1995 Act, the court will have regard to three principles, namely:

1. the welfare of the child is the paramount consideration;

2. taking account of the child’s age and maturity, the child shall, so far as practicable, be given an opportunity to express his or her views; and

3. the court will not make any order unless it considers that to do so would be better than making no order at all (1995 Act, section 11(7)).

The Family Law (Scotland) Act 2006 (section 24) also amended section 11 to require the courts to “have regard in particular” to the need to protect the child from actual or possible abuse, the effects of such abuse on children, the ability of the abuser to care for the child, and the effects of abuse on a person’s capacity to fulfil PRRs (1995 Act, section 11(7A)–(7E)). Abuse is defined as including “abuse of a person other than the child” (1995 Act, section 11(7C)(b)). Accordingly, the situation where one parent is abusing (or has abused) the other is covered. In relation to 2 above, a child aged 12 years or older is presumed to have sufficient maturity to form a view (1995 Act, section 11(10)).

In relation to 1 and 3 above, the court will have regard to a wide range of factors in the application of these principles. However, one of the relevant factors likely to be taken into account is the applicant’s ability to, and willingness to, listen to his or her child or children (Treasure v McGrath 2007 SCLR 447; 2006 Fam LR 100; Barry v McBride 2012 GWD 21-433).

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DEALING WITH SPECIFIC DISPUTES ABOUT PARENTING

RESIDENCE AND CONTACT

A particularly common cause of disagreement between parents who live apart relates to the arrangements for the residence of the child and for contact with the child by the parent that the child is not living with. Methods of resolving such disputes are discussed below. The related topic of child abduction (where a parent or other person or body takes a child without legal authority to do so) is dealt with in the final section of this briefing.

Reaching agreement without going to court

Because of the potential stress and expense of ending up in court, generally it is considered best if the parents can come to an amicable agreement in relation to residence and contact arrangements for their children.

The Parenting Agreement

The Scottish Government has produced a useful guide for parents who are splitting up to help them make decisions about a range of issues associated with their children’s future care:

Guide to the Parenting Agreement

Parenting Agreement Plan As part of its National Parenting Strategy the Scottish Government is committed to updating the Parenting Agreement in 2014. A Working Group has been established by the Government to take this commitment forward but the Group has not yet agreed what changes should be made.

Family mediation

Mediation is a form of Alternative Dispute Resolution (ADR), i.e. an alternative to resolving disputes using the court process. If parents are struggling to agree in relation to the child’s residence or contact (or indeed any other issue) it may be beneficial for them to seek the support of a family mediator. Both parents have to be willing to participate voluntarily. Pre-mediation screening for domestic violence is used to determine whether or not a case is appropriate for mediation. The website of the Scottish Mediation Network contains more information about family mediation, including a search tool to help separating couples find a local mediation provider. Relationships Scotland is a voluntary organisation which is a leading provider of family mediation services. CALM Scotland also provides mediation services across Scotland and is run by experienced solicitors specialising in family law. It has a search tool to enable access to local mediators.

Other forms of alternative dispute resolution

Arbitration is another form of ADR which may be helpful in the context of a dispute. The people involved agree to refer the dispute to an arbitrator whose decision on the issues is binding on them. For more information see the website of the Family Law Arbitration Group Scotland.

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The work of Consensus Collaboration Scotland is also relevant in this context. It is an organisation of Scottish lawyers, family consultants and financial specialists. It aims to offer separating couples a non-confrontational way of agreeing the legal and practical arrangements for their separation and divorce.

Legally enforceable agreements

Note that the Scottish Government’s Parenting Agreement is not of itself legally enforceable, nor are any decisions reached in mediation. With the advice of a solicitor, parents often convert the informal agreement they reach on matters associated with the care of their children into a legally binding agreement. This involves registering a ‘minute of agreement’ in the Books of Council and Session.6 However, it is always possible for a court to subsequently make court orders relating to the child’s residence and/or contact with the child by a parent which override the terms of any existing agreement. To help find a solicitor in Scotland specialising in family law the Law Society of Scotland’s website has a facility allowing you to search by specialism. The Family Law Association has a similar search facility. The Scottish Legal Aid Board also allows you to search for a firm of solicitors who offer help through legal aid. Note that around 75% of the Scottish population now qualify financially to have all or part of their costs met from the civil legal aid budget.7

Section 11 orders

If a dispute cannot be resolved by other means, a parent may have to apply for a residence or contact order under section 11 of the 1995 Act. For more details on section 11 orders see page 8.

Other sources of support

A father who is living apart from his child and who is dealing with difficulties in his relationship with his child may also benefit from the practical support of organisations such as Families Need Fathers Scotland. Where domestic abuse has been, or continues to be, an issue in the relationship between the parents, the support of organisations such as Scottish Women’s Aid can be very helpful. However, note that a comprehensive treatment of the law relating to domestic abuse is outwith the scope of this briefing.

Developments in England and Wales

The Scottish Government has no plans for a review of the law relating to PRRs. However, there have been recent legal developments in England and Wales which are not applicable to Scotland. In SPICe’s experience, constituents occasionally refer to them in error due to national media coverage of those developments. Accordingly, we consider that a short summary of the new law may be helpful.

For England and Wales, the Children Act 1989 makes provision for various court orders regulating arrangements for the care of children (equivalent to section 11 orders under the 1995

6 For a recent academic study on the operation of minutes of agreement in practice (Mair et al 2013) see:

http://www.crfr.ac.uk/assets/MinutesofAgreement20131.pdf; For a short summary of the key findings (Mackay

2013) see: http://www.crfr.ac.uk/assets/briefing-68-web.pdf 7 See further: http://www.slab.org.uk/public/civil/eligibility/

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Act in Scotland). Section 11 of the Children and Families Act 2014 (c 6) amends the checklist in the 1989 Act which the court must have regard to when considering whether to grant a court order relating to the care of children.

Specifically a court is to presume, unless the contrary is shown, that involving each parent in the life of the child concerned will further the child’s welfare. Amid some controversy during the parliamentary passage of the legislation, the provision was amended to clarify that involvement in this context does not refer to any particular division of the child’s time.

For some groups campaigning on the issue of fathers’ rights, the reform was welcome but did not go far enough.8 Conversely, groups campaigning to protect (usually female) domestic abuse victims were disappointed that the legislation did not provide for a presumption against an abuser having unsupervised contact with a child.

WHEN A PARENT WILL NOT COMPLY WITH A CONTACT ORDER

The law in Scotland

Sometimes, after a contact order is obtained, the party in whose favour it is granted experiences difficulties with enforcing the terms of the order in practice. If reaching an amicable solution fails, the current legal remedies for breach of a contact order are as follows:

contempt of court: the person in breach can be found in contempt of court with the possibility of them being fined or imprisoned. Judges are reluctant to imprison an individual in this situation because of the implications for the children involved but it does happen in a small number of cases.9

variation of existing court orders: a court has a discretion to vary the terms of any residence order in place, as well as any contact order. Theoretically, the court could alter who the child lives with as a result of the breach of the contact order. However, the welfare of the child is the paramount consideration.

All these enforcement powers involve a return to court for the person seeking to enforce the contact order. Additional legal expenses are likely to be incurred by that person during the process, unless he or she qualifies to have all of his or her expenses met out of the civil legal aid budget. It is worth remembering that difficulties over contact do not justify a person stopping making child support payments as the legal obligations associated with child support are entirely separate from the law governing contact with children.

8 See, for example, the news release (dated 19 March 2014) from Families Need Fathers Scotland (you will need to

scroll past more recent news releases): http://www.fnfscotland.org.uk/news/tag/legislation 9 For an example of a situation where a parent in a contact dispute was imprisoned for contempt of court see the

case of M v S 2011 SLT 918; 2009 Fam LR 149: http://www.scotcourts.gov.uk/opinions/2009CSIH44.html. Another

example is the case of AG v JB [2011] CSIH 56: https://www.scotcourts.gov.uk/opinions/2011CSIH56.html. Most

recently in relation to the case of JDE v SDW see: https://www.scotcourts.gov.uk/search-

judgments/judgment?id=46709da6-8980-69d2-b500-ff0000d74aa7

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Developments in England and Wales

Again there have been recent developments in England and Wales relating to enforcement not applicable to Scotland but which have attracted some media coverage. Accordingly, it may be helpful for MSPs to be aware of these.

The current position

The equivalent to section 11 orders can be made under section 8 of the Children Act 1989 (c 41).

As in Scotland, faced with a breach of such an order, the court can use its contempt of court powers and, in an appropriate case, can consider imposing a fine or custodial sentence. The child’s living arrangements can also be altered, although again the welfare of the child is the paramount consideration.

The Children and Adoption Act 2006 (c 20) introduced new enforcement powers for courts relating to breaches of orders relating to contact. These include the power to impose an unpaid work requirement on the person in breach and the power to require that person to pay compensation for financial loss suffered to the other parent.

Proposed reforms

In 2012, the UK Government consulted on whether there was a need to explore additional enforcement sanctions where there was “a wilful refusal” to comply with a court order (Department for Education & the Ministry of Justice 2012). Proposed sanctions included court orders imposing a curfew on the person in breach and the withdrawal of passports and driving licences. In February 2013, the UK Government said that it had decided it would be premature to introduce additional measures (Ministry of Justice 2013).

Research was published by the Nuffield Foundation and the University of Exeter in 2013 which considered the additional enforcement powers created by the Children and Adoption Act 2006. It concluded that the new powers under the 2006 Act had been rarely used in practice and that there was no evidence that further or new sanctions would be more widely used (Trinder 2013; Trinder et al 2013).

SCHOOL REPORTS

Parents who don’t live with their children sometimes encounter difficulties in receiving official information relating to their child. A popular example relates to who receives copies of school reports.

The Pupils Educational Records (Scotland) Regulations 2003

Parent’s right of access

Regulation 2 of the Pupils Educational Records (Scotland) Regulations 2003 (SSI 2003/581)(‘the Regulations’) provides a parent with a general right of access to their child’s educational records from the relevant local authority. ‘Parent’ is defined for the purposes of the Regulations as:

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“including guardian and any person who is liable to maintain or who has parental responsibilities10 (within the meaning of… the Children (Scotland) Act 1995) in relation to, or has care of, a child or young person” (the Regulations, regulation 2; Education (Scotland) Act 1980 (c 44), s 135(1))

Accordingly, the definition of ‘parent’ for the purposes of educational records (and other aspects of education law) is a very broad one, going beyond those who have PRRs in terms of the 1995 Act. In particular, a parent includes an individual who does not have parental responsibilities under the 1995 Act but who is liable to financially support his or her child.11

Exception to disclosure where likely to cause significant distress or harm

Regulation 6(d) of the 2003 Regulations provides that no information about educational records should be disclosed which, in the opinion of the relevant local authority, would be likely to cause significant distress or harm to the pupil or any other person. So, on one hand, a court order depriving a parent of some or all of his or her PRRs does not automatically prevent access to educational records. However, in considering whether to provide this access, the educational authority may well take into account factors which were also relevant in the context of granting the court order.

Guidance on the topic

A number of education authorities have issued guidance circulars to their educational establishments on the Pupils' Educational Records (Scotland) Regulations 2003. In addition, the Learning and Teaching Scotland website Parentzone provides information on its webpage entitled Access your child's record.

Other educational issues

Note that other issues associated with a child’s education are dealt with either by the specialist area of educational law, including the Education (Scotland) Act 1980 (c 44) (referred to above).

The law relating to PRRs under the 1995 Act is also relevant. In particular, a dispute about a child’s education, such as where a child should go to school, could be the subject of a ‘specific issue order’ made by the court under section 11 of the 1995 Act (1995 Act, s 11(2)(e)). (On section 11 orders see above at page 8.)

For example, in the case of Clayton v Clayton (1995 GWD 18-1000) the parents were in dispute over their son’s education. Specifically, the dad wanted his son to attend a specific private school in Edinburgh, rather than continue with state education. The dad sought a specific issue order to this effect, although the judge did not find in his favour.

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As discussed earlier in the briefing, holders of parental responsibilities have corresponding parental rights under

the 1995 Act to enable them to fulfil their parental responsibilities. Accordingly, the collective term in the 1995 Act is

‘parental responsibilities and rights’ (‘PRRs’ for short) and this is the terminology used elsewhere in the briefing.

However, for reasons that aren’t entirely clear, the 1980 Act only makes reference to the parental responsibilities

found in the 1995 Act. 11

For example, any person who has ‘accepted’ the child into his or her family has an obligation to financially

support that child (Family Law (Scotland) Act 1985 (c 37), section 1(1)(d)).

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A CHILD’S NAME

Sometimes, after parents separate or divorce, one parent wants to change his or her child’s surname. This could be to the child’s mother’s maiden name or to the surname of a parent’s new partner. Sometimes a parent even wants to change the child’s first name.

The distinction between changing a name and recording a name change

As a preliminary point, there is an important distinction in Scotland between changing a name and recording a name change.

In Scotland, for most purposes, the name which appears on a person’s birth certificate (including the name which appears on a child’s birth certificate) has little legal significance. A person (including a child) generally has the name by which he or she is known (Norrie 2013, 7.44).

However, for certain purposes (such as when dealing with HM Passport Office) documentary evidence is required of a change of name. Consequently, a parent in Scotland may have good practical reasons for wishing a child’s change of name to be recorded on his or her birth certificate.

The topics of ‘Changing a child’s name’ and ‘Recording a child’s change of name’ are considered separately below.

Changing a child’s name

General

Anyone over the age of 16 can change their own name. However, the name of a child under the age of 16 can only be changed by someone having PRRs.12 If only one parent has PRRs then they can go ahead and carry out the child’s change of name. Where two parents have PRRs the situation is more complex. Under section 2 of the 1995 Act, if two or more people have PRRs, each can generally exercise a parental right without the consent of the other (1995 Act, s 2(2)). On the other hand, an individual reaching a major decision in respect of a PRR must, so far as practicable, take into account the views of anyone else with PRRs, as well as the views of the child concerned (1995 Act, s 6(1)).13

The courts and name changes

If a parent with PRRs unilaterally changes a child’s name, or has indicated that he or she intends to do it, then, in practice, the other parent might object to that. In these circumstances, it would be possible for the parent who objects to apply to the court for a ‘specific issue order’ to decide what should happen in that particular case (1995 Act, s 11(2)(e)). In reaching its decision, the court will have regard to a number of principles, with the welfare of the child being

12

Where a child wishes to change his or her name and parental co-operation is not forthcoming, Professor

Sutherland suggests (Sutherland 2008, para 7-028) that the appropriate route would be for the child to seek a

‘specific issue order’ under section 11 of the 1995 Act. She acknowledges that the difficulty in practice would be

that most children are unaware of their right in this regard or of their right to instruct a solicitor (by virtue of section

4A of the Age of Legal Capacity (Scotland) Act 1991 section 4(4A)). 13

However, one leading family law textbook has pointed out that the 1995 Act does not appear to create any legal

consequences associated with the failure to fulfil the latter duty (Norrie 2013, para 6.04).

15

the paramount consideration (1995 Act, s 11(7)). For more information on section 11 orders see page 8.

The approach of unilaterally changing a child’s name was considered and criticised in a sheriff court case in 2002 (M v C 2002 SLT (Sh Ct) 82)). The sheriff in that case said that, whilst exceptional circumstances might justify such an action, as a general rule it was quite inappropriate for either parent to take a unilateral decision.

The effect of the law in practice

As discussed above, in Scotland a person (including a child) has the name by which he or she is known. Consequently, unless a specific issue order applies, an individual parent with PRRs may have power in practice in certain settings. For example, to change the name by which a child is known at school. However, as already mentioned, some UK bodies, most notably HM Passport Office require documentary evidence of name changes. The main method of doing this is by recording a child’s change of name. As will become apparent from the discussion below, there is no scope for a parent to act unilaterally in this regard where both parents have PRRs.

Recording a child’s change of name

Who can record a name change?

Where a child is under 16 an application to record a child’s change of name must come from both parents where they both have PRRs (1965 Act, section 43(9A)).

Where a child is under 16 and there is only one parent with PRRs the application must be made by that person (1965 Act, section 43(9A)).

Where a person is over 16 he or she must apply on his or her own behalf (1965 Act, section 43(5)).

Recording a change of name – the process

Overall, only one change of forename(s) and one change of surname(s) may be recorded for a child under the age of 16 (1965 Act, section 43(3) & (4)).

One change to a child’s forename(s) can be recorded until he or she is 12 months old using a Form 21.

To record a change to a child’s surname(s) a Form 23 can be used. A Form 23 can also be used to record a change of forename(s) in respect of child over 12 months old (where his or her forename has not been changed using a Form 21 in the first year of his or her life).

Where a change of name is recorded using a Form 23, a birth certificate issued subsequent to the recording of the change will show the new forename(s) and surname(s) with the original forename(s) and surname(s) shown separately. This is not the case with a change of forename recorded under a Form 21 which just shows the new forename(s).

Where a Form 21 or a Form 23 is used there is also a questionnaire to be completed when the parents were not married at the time of the child’s birth and have not subsequently married.

A Form 24 must be used in respect of a person who is over 16.

16

Further guidance

A useful guide to the law and practice of the recording of name changes can be found in this leaflet.

Comparison with England and Wales

Note that in England and Wales a change of name can only be reflected on a birth certificate (including on a child’s birth certificate) in limited circumstances. Consequently, the use of other methods of evidencing a child’s name, such as deed polls, is much more common.

THE PATERNITY OF A CHILD

Legal presumptions associated with the paternity of a child

When a man is married to the mother of a child at any time in the period beginning with the conception and ending with the birth of that child then the man is presumed in law to be the father of that child (Law Reform (Parent and Child)(Scotland) Act 1986 (c 9), section 5(1)(a)).

Alternatively, when a) a mother and a man claiming to be the child’s father acknowledge that he is the father of the child; and b) register him as such on the child’s birth certificate; then the man in question is presumed in law to be the father of the child (Law Reform (Parent and Child)(Scotland) Act 1986 (c 9), section 5(1)(b)).

However, these legal presumptions can be overturned when evidence is led, proving, on the balance of probabilities, that the man in question is not the father of the child (1986 Act, section 5(4)).

Declarators of parentage and DNA testing

A man seeking to establish that he is a child’s father may raise an action for a ‘declarator of parentage’ in the local sheriff court or the Court of Session in Edinburgh.14

DNA evidence – no ability to compel testing

DNA evidence is the main source of evidence in such actions. For results with a high degree of reliability, paternity testing requires a sample (typically either cheek cells or a blood sample) from the child’s mother, the man in question and the child. (Some companies offer paternity tests that only require samples from the child and the man, sometimes called motherless testing. Results from tests like this are less accurate.)15

A civil court in Scotland (unlike a criminal court) cannot compel a competent adult to submit to a blood test or, indeed, any other test involving bodily interference. However, a civil court may now request someone who has either raised or is defending a court case to do so. The court may draw any inference from a refusal as it considers appropriate (Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c 40), section 70).

Who can consent to DNA testing

Where the child (i.e. someone under 16) is of sufficient age and understanding to appreciate what is involved in a paternity test and the likely consequence of it, he or she can consent to the

14

The issue of parentage may also be determined incidentally to other proceedings. 15

See: http://www.nhs.uk/chq/pages/1017.aspx?CategoryID=61&SubCategoryID=615

17

test (Age of Legal Capacity (Scotland) Act 1991 (c 50), section 2(4)). A medical practitioner assesses the child’s competence for this purpose. In many cases of disputed parentage, the child will be too young to be in a position to consent to the test and the necessary consent will have to come from elsewhere. Any person who has PRRs in respect of a child under 16, or care and control of him or her, may consent on a child’s behalf (Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c 40), section 6(2)). As discussed above, all mothers have automatic PRRs and so they can consent. However, a father seeking to establish the paternity of his child often will not have PRRs.16

The effect of a declarator of paternity

The general rule associated with the Register of Births is that once an entry in it is made this remains unchanged. However, a separate Register of Corrections also exists to allow official acknowledgement of subsequent changes associated with entries in the registers including the Register of Births. Where a father obtains a declarator of paternity in his favour this can be registered in the Register of Corrections (Registration of Births, Deaths and Marriages (Scotland) Act 1965, section 18(2)(a)). However, at present, official copies of the birth certificate do not reflect this change. The Scottish Government would like to review this practice.17 Where a man has obtained a declarator of paternity that he is the father of a child, he does not automatically obtain PRRs in relation to the child. He can only acquire them with the agreement of the mother (unlikely to be forthcoming in the circumstances of such a case) or by court proceedings under section 11 of the 1995 Act.

CHILD ABDUCTION

Abduction in the context of this briefing refers to the situation where a parent (or other person or body with PRRs) takes a child without legal authority to do so. This can be both a civil law and a criminal law matter.

WITHIN SCOTLAND

If one parent has never had PRRs, or has had the right to determine the child’s residence removed by the court, then the other parent has the right to make the decisions which controls where the child will live.

If the parent without legal rights in this regard then removes the child, or fails to return him or her after an authorised visit, then the police should be informed and they will usually assist in the recovery of a child (Sutherland 2008, para 7-128).

Where there is a court order relating to the child in force then the parent who abducted the child may be held to be in contempt of court. This also applies to any other person who knew about the court order and acted in defiance of it. In addition, the court may order the parent without

16

On the other hand, a possible scenario is that parents were married and the husband had always assumed a

child was his. Only on separation or divorce does the wife start to publicly question his paternity of that child. In this

situation the father has PRRs by virtue of being married, or having been married, to the child’s mother. 17

As stated in a letter to the Public Petitions Committee relating to PE01513. The Scottish Government said that it

will consult key bodies on what the approach should be.

18

PRRs to return a child and failure to obey this order would again be contempt of court (Sutherland 2008, para 7-128).18

OUTWITH SCOTLAND BUT WITHIN THE UK

A residence order in relation to a child under the age of 16 made by any court in Scotland, England and Wales, or Northern Ireland, is recognised automatically throughout the United Kingdom as having the same effect as if it had been made by the court where recognition is sought. So, for example, if a child is removed by a parent to England, any residence order granted in Scotland will take effect in England. However, for an order to be enforced elsewhere in the UK it must be registered. The application for registration is made to the court that originally granted the order (Family Law Act 1986 (c 55), sections 25 and 27)).19

If a child is removed from Scotland without the consent of a person with the right to determine a child’s residence then it may be necessary to raise a court action. Section 41 of the Family Law Act 1986 provides that where a child is removed in those circumstances, the child is treated as continuing to be habitually resident in Scotland for a period of one year beginning on the date on which those circumstances arise. This means that the Scottish courts, not the courts where the child now lives, have ‘jurisdiction’ (i.e. legal authority to hear and determine any case) for one year after the removal.20

OUTSIDE THE UK

UK law

In Scotland, as discussed above, a person with PRRs may normally act alone in the exercise of those PRRs (1995 Act, section 2(2)). However, he or she may not take the child out of the UK without the consent of any other person who has PRRs or without the permission of the court (1995 Act, section 2(3) and (6)). Accordingly, where one parent wants to move abroad and the other parent refuses to agree, the onus falls on the parent intending to relocate to take the matter to court.

Furthermore, by virtue of the Child Abduction Act 1984 (c 37), where the child is the subject of a court order relating to his or her residence, anyone wishing to remove the child must obtain the consent of specified people or bodies. These include the child’s parents or guardians; anyone who has a right to determine the child’s residence as a result of the court order in question; and any person who has been named by the court as the person with whom the child is to live (Child Abduction Act 1984 (c 37), section 6(3)).

Under the 1984 Act, removal of a child from the UK by a “person connected with a child” without appropriate consent is a criminal offence in two situations. In the first place, an offence is committed where there is a court order in force relating to the child’s residence. Secondly, an

18

Professor Sutherland refers to various cases in this regard, namely: Lord Advocate v The Scotsman Publications

Ltd 1989 SLT 705 (HL); Brown v Brown 1948 SC 5; Fowler v Fowler (No 2) 1981 SLT (Notes) 78. 19

There has also been some debate about whether the rules found in the Brussels IIa Regulation which apply

between different EU member states also apply between the different parts of the UK. Article 66 of the Regulation

attempts to deal with member states with more than one legal jurisdiction. However, it does not provide a clear

answer on the point in question. See further on pages 19–20 for a discussion of Brussels IIa. 20

This is subject to sections 2(3)(b)(ii) and 19(3)(b)(ii) of the Family Law Act 1986 (c 55). These provisions give the

courts in other parts of the UK an inherent jurisdiction in certain circumstances. Specifically these are where the

child in question is living in another part of the UK and a court in that part of the UK considers it necessary to

immediately exercise its powers for the protection of the child in question.

19

offence is committed where there is a court order in force prohibiting the removal of a child from the UK or any part of it.21

A “person connected with a child” for the purposes of the criminal offence under the 1984 Act includes the child’s parents or guardians; any person with a right to determine the child’s residence; and any person who has been named by a court as the person with whom the child is to live. It also includes a person reasonably believed to be the child’s father (Child Abduction 1984 (c 37), section 6(1) and 6(2)).

A conviction under the 1984 Act, in summary court proceedings, renders a person liable to imprisonment for up to three months, or a fine, or both. If the conviction is on indictment, the possible penalty is of imprisonment for up to two years, or a fine, or both (Child Abduction 1984 (c 37), section 8).

The international aspect

There are two applicable international legal instruments relating to child abduction which have legal effect in the UK:

the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the Hague Convention’); and

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility (‘Brussels IIa’22).

The Child Abduction and Custody Act 1985 (c 60) (as amended) gives effect to the Hague Convention in UK law. (Brussels IIa, as an EU regulation, is automatically part of UK law).

Brussels IIa

Brussels IIa lays down the uniform rules applicable between EU member states in relation to parental responsibility cases which are connected with more than one member state.

Brussels IIa is important in child abduction cases because it contains additional provisions which supplement the Hague Convention in cases involving two EU member states. In particular, there is a special rule relating to ‘jurisdiction’, i.e. which courts have legal authority to hear and determine any case. Specifically, the courts of the member state where the child came from will retain the jurisdiction to hear and determine any subsequent court case relating to the child’s residence, in spite of the abduction. Only in very limited circumstances will jurisdiction be transferred to the member state where the child now lives.23

Brussels IIa says that in cases of wrongful removal or retention of a child, the return of a child should be obtained without delay. A country’s ‘central authority’ has a key role in relation to the implementation of this aspect of the Regulation. Where a child is removed from a country, an application can be made to the central authority of that country, and then that central authority

21 It is a defence to show that the person who removed the child believed that he or she had consent; or believed

that consent would have been given if all the circumstances had been known; or took all reasonable steps to

communicate with the relevant people but had been unable to do so; or did not know of any court order regulating

residence (Child Abduction Act 1984 (c 37), section 6(4) and (5)). 22

This is sometimes referred to as ‘Brussels II bis’. 23

These include where the child has acquired habitual residence in another member state and those with rights of

custody (i.e. rights to determine the child’s residence) have acquiesced in the abduction (Brussels IIa, article

10(a)).The second situation where jurisdiction transfers to the member state where the child now lives is based on

a complex set of criteria (see further Brussels IIa, article 10(b)). Legal advice is recommended in individual cases.

20

forwards the application to the central authority to which the child has been taken. The parent who is trying to get the child returned will either have exemption from financial costs and expenses or will at least benefit from the most favourable legal aid provided by the member state where the child has been taken. Each part of the UK has its own central authority. Scottish Ministers are the central authority for Brussels IIa (and for the Hague Convention). Central authority functions are carried out on their behalf by officials in the Scottish Government’s Justice Directorate. The relevant contact details can be found here.

The Hague Convention

The Hague Convention seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return.

Again, the central authority of each country plays a key role in achieving the return of a child. In particular the Hague Convention creates a presumption that the courts in the country to which the child has been taken will order that the child is returned to his or her home country. A list of countries which have ratified the Hague Convention can be accessed here.

Other cases

A number of countries outwith the EU are not subject to the Hague Convention. Where a child is taken from Scotland to one of those countries, any person seeking the child’s return will have to rely on the local law of the relevant country to try and secure this. Achieving return in this type of situation is much more difficult. However, for these countries, the Foreign and Commonwealth Office and the charity Reunite International can provide support and assistance to the left behind parent. Note that the court action may also incur significant legal costs, as public funds may not support legal actions in that country (e.g. via legal aid). There is a Judicial Protocol in place between the UK and Pakistan. This is an agreement between the judges of the UK and Pakistan as to how to approach child abduction cases and the aim is to secure the return of the child to the country where he or she normally lives. However, it is an agreement about good practice, rather than being legally binding on judges in Pakistan. Any enquiries relating to this Protocol should be directed to the Foreign and Commonwealth Office.

SOURCES OF HELP AND SUPPORT

Reunite International has produced a very helpful Child Abduction Prevention Guide for Scotland, setting out what to do if a person fears their child is in danger of abduction. The website of Reunite International also has a search facility allowing you to search for firms of solicitors in Scotland which specialise in providing advice on international child abduction cases.

In addition, a range of sources of help and support for parents dealing with child abduction (or a risk of child abduction) can be accessed on the Scottish Government’s webpage.

21

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RELATED BRIEFINGS

The Scottish Civil Court System

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