Skip to main content
Experts

A quick guide to children law in England & Wales and Scotland – Part 1 - Parental responsibility

Considerable attention has been given to the differing legal jurisdictions in England and Wales, and in Scotland.

Since the Supreme Court decision of Villiers, considerable attention has been given to the differing legal jurisdictions in England and Wales, and in Scotland.

Different laws and processes apply in each jurisdiction, and below we highlight some of the main differences in relation to children disputes.

It follows on from our earlier articles highlighting some of the main differences in divorce/dissolution law:

  1. Civil partnership dissolution
  2. Financial settlements arising on divorce
  3. Cohabitation

Children law & parental responsibility

If parties have children together, and a relationship breaks down, their legal positions are very different depending on where the parties and children live and where the dispute is located.

As a starting point, it is important to understand whether that individual has parental responsibility, as this generally means whether they have a right to be consulted on decisions for a child.

What is parental responsibility?

Parental responsibility is a concept of duties and responsibilities towards a child. The concept is an international one, however the definition varies from country to country.

It is important to note that if a child is born overseas and comes to live in the UK, parental responsibility is defined by the UK as that is the country they are now living in. In some circumstances, parental responsibility can be gained by virtue of changing a child’s habitual residence.

Some of the issues that parents need to be consulted on are highlighted in our article on Exercising parental responsibility.

Parental responsibility

For more information about parental responsibility in England and Wales, listen to our podcast.

Scotland defines both parental responsibility and parental rights as follows:

Children (Scotland) Act 1995 describes parental responsibility as:

(1) Subject to section 3(1)(b) [F1, and (d)] and (3) of this Act, a parent has in relation to his child the responsibility—

(a) to safeguard and promote the child’s health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the child

(i) direction;

(ii) guidance, to the child;

c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child’s legal representative, but only in so far as compliance with this section is practicable and in the interests of the child.

"Parental rights" are set out in section 2 of the Act and are as follows:

  1. to have a child living with him or her or otherwise regulate the child's residence;
  2. to control, direct or guide in a manner appropriate to the stage of development of the child, the child's upbringing;
  3. if the child is not living with him or her, to maintain personal relations and direct contact with the child on a regular basis; and
  4. to act as the child's legal representative.

Who has parental responsibility? 

Relationship to child England and Wales Scotland
Mother Yes Yes
Biological father 

Automatic if: 

- married to the child's mother at the time the child is born; or

- listed on the birth certificate after 1 December 2003 

Can also be acquired by: 

- jointly registering the birth of the child with the mother 

- getting a Parental Responsibility Agreement with the mother 

- getting a Parental Responsibility Order from a Court 

- getting a Child Arrangements order from a Court (lives with order, or an order to spend time with and the court decides it is appropriate to grant parental responsibility.) 

Automatic if: 

- married to the child's mother at the time the child was conceived or any time before; or 

- listed on the birth certificate after 4 May 2006 

Can also be acquired by: 

- jointly registering the birth of the child with the mother 

- getting a Parental Rights and Responsibility Agreement with the mother 

- getting an order for parental responsibilities and rights from a court

Adoptive parents  Yes Yes
Step parents (married or civil partnership) 

Can be acquired by:

- signing a Parental Responsibility Agreement to which all the other people with Parental Responsibility consent

- obtaining a Parental Responsibility Order following an application to the court

- obtaining a Child Arrangements Order (lives with order, or an order to spend time with and the court decides it is appropriate to grant parental responsibility)

Can be acquired by:

- obtaining a Parental Rights and Responsibilities Order following an application to the court

- obtaining a Residence or Contact Order following an application to the court

Same-sex couples 

Automatic if: 

- the birth mother of a child

- named on a child's adoption order

- named on a child's parental order after surrogacy

- same-sex partners will both have parental responsibility if they were civil partners or married at the time of the treatment, e.g. donor insemination or fertility treatment

- the appointed guardian of a child whose parent has died and they have consented to act as such

Automatic if:

- the birth mother of a child

- named on a child's adoption order

- named on a child's parental order after surrogacy

- same-sex partners will both have parental responsibility if they were civil partners or married at the time of the treatment, e.g. donor insemination or fertility treatment.

 - the appointed guardian of a child whose parent has died and they have consented to act as such

Same-sex partners who are not civil partners or married 

Can be acquired by:

- applying for parental responsibility if a parental agreement was made; or 

- becoming a civil partner of the other parent and making a Parental Responsibility Agreement or jointly registering the birth

Can be acquired by:

- completing the forms they need to get parental responsibilities and rights
Others Application to court  Application to court

Summary

Accordingly, good advice and strategy will provide considerable protection and prevent one parent acting on their own to the detriment of the other parent and the child.

We can provide specialised advice in both England & Wales and Scotland, and assist in any cross border family cases which span both jurisdictions.

Contact our expert child law solicitors for further guidance on parental responsibility

Sectors and Services featured in this article

Share on Twitter