Family & Matrimonial

Children

Parents who separate should carefully consider the arrangements they make for their children. It is important for parents to remember that while they may be preoccupied with their own problems, they continue to be the most important people in their children’s lives. While parents may be devastated or relieved by the permanent ending of the relationship, children can also be frightened or confused by the break-up of the family.

It is best for the children if parents can reach agreement between themselves on arrangements for their children. In many cases the children will live mainly with one parent and spend periods with the other parent on a regular basis. Sometimes parents will decide to share the care of their children on an equal basis. The law recognises that parents are best placed to make these arrangements and the courts will only make orders as a last resort.

Who has parental rights and responsibilities?

Parental rights and responsibilities, which are set out in the Children (Scotland) Act 1995, are explained below. Married couples have equal parental rights and responsibilities. Under the Family Law (Scotland) Act 2006, which came into force on 4 May 2006, unmarried fathers who jointly register the birth of a child with the child’s mother, share parental rights and responsibilities with the mother. This puts unmarried fathers who jointly register the birth in the same position as married fathers. This is not retrospective, which means it only applies to births registered after 4 May 2006.

Who is a child?

A child is a person under 16 years of age, generally speaking, but in certain circumstances under 18 years.

What are parental responsibilities and rights?

Parental responsibilities are what parents are expected to do. Parental rights are what parents are allowed to do. Rights and responsibilities continue until the child reaches 16 years, except for the right to provide guidance, which continues until the child reaches 18.

Parental responsibilities

As a parent the law says you have the following responsibilities in law:
  1. To safeguard and promote the child’s health, development and welfare. Parents are expected to look after their children, to help them.
  2. To provide direction and guidance in a manner appropriate to the stage of development of the child. Parents are expected to say how a child should be brought up until they are 16. Between 16 and 18 parents are expected to advise a child, to enable them to make good decisions.
  3. If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis. Parents are expected to stay in touch and be involved with their children if they are not living with them.
  4. To act as the child’s legal representative. Parents are expected to take the child’s place as their representative in anything which is complicated, until they are 16.

Parental rights

The law sets out these parental rights:
  1. To have the child living with them or otherwise to regulate the child’s residence until the child is 16.
  2. To control, direct or guide the child’s upbringing in a manner appropriate to the stage of development of the child. Parents are allowed to say how their children should be brought up until they are 16.
  3. If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis.
  4. To act as the child’s legal representatives.
As you will see, there is some overlap between the parental responsibilities and parental rights. The law provides that the rights are designed to enable parents to fulfil their responsibilities.

Reaching agreement about children

The rules relating to financial aspects arising on divorce or termination of a civil partnership are very different to those relating to cohabitation. Most, if not all, people know that there are financial implications in marrying. Not everyone is aware that there are financial implications of cohabiting. While the financial implications of cohabitation are limited in comparison to the financial implications of marriage, some people choose not to marry because they do not want there to be any financial implications of being in a relationship.

You may wish to take legal advice before moving in with your partner. A cohabitation agreement could be drafted to set out the arrangements which will come into play if and when a cohabiting couple separate. This may minimise any potential stress and anxiety. A cohabitation agreement can allow parties to have control over the consequences of cohabiting with someone, and/or the consequences of termination of a cohabiting relationship.

A cohabitation agreement is no different to any other contract and can cover as much or as little as possible, depending on the individual circumstances of the couple.

Child welfare hearings

The law sets out these parental rights:
  1. To have the child living with them or otherwise to regulate the child’s residence until the child is 16.
  2. To control, direct or guide the child’s upbringing in a manner appropriate to the stage of development of the child. Parents are allowed to say how their children should be brought up until they are 16.
  3. If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis.
  4. To act as the child’s legal representatives.
As you will see, there is some overlap between the parental responsibilities and parental rights. The law provides that the rights are designed to enable parents to fulfil their responsibilities.

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