When parents don't agree about aspects of their parenting arrangement such as who should be looking after their child, the local legal system may get involved. Research has found that it is in the best interests of the child to avoid going to court when parents disagree. Parents are often encouraged to sort out disputes using alternative dispute resolutions such as family mediation. However, there are some cases where this will not be enough to resolve the disagreement. Find out about the relevant legislation that might be used in these cases.

 

In Scotland

Parental Responsibilities and Rights

Under the Children (Scotland) Act 1995, a parent typically (see below) has Parental Responsibilities and Rights (PRRs):

Parental responsibilities are things that parents are expected to do while their children grow up. Including helping them to be healthy and encouraging their growth, development and welfare.

Parental Rights are things parents are allowed to do in order to carry out their responsibilities, they are expected to use these rights to do things that are best for their children.

  • Including having the right to have their child live with them or decide where the child lives. 
  • If a parent is not living with their children they have both the responsibility and the right to stay in touch with, and be involved with the lives of their children.
  • They also have both the responsibility and the right to say how their children should be brought up.

Who has PRRs?

A mother is given PRRs automatically while a father will be given PRRs automatically only if they are married to the mother. 

Following changes made in the Family Law (Scotland) Act 2006, if a child's father is not married to the mother, they can automatically be given PRRs if they register the child's birth together i.e the father's name appears on the child's birth certificate.

A father can also get PRRs by:

  • marrying the mother
  • filling in a form called a Parental Responsibilities and Parental Rights Agreement ( PRPRA), provided the mother agrees
  • asking the court to give them to him.

Other people can also ask the court for PRRs, for example step-parents, grandparents, aunts or uncles.

When deciding whether to give someone PRRs the court will always be thinking about what is best for the child, not what is best for the adult who has asked for the PRRs.

Family Disputes

If agreement can't be reached on key issues such as where the child stays, who has contact and matters such as education. religious observance and healthcare, the matter can be raised in court.  Typically three things are taken into account in court to make decisions in these cases using the Children (Scotland) Act 1995:

  • The child's welfare
  • Any views the child wishes to express
  • Avoiding any unnecessary orders

When all else is equal, the law aims to support the continued involvement of both parents in a child's life.

The Child's Views

The court will give the child the opportunity to express their view and will take that into account when making a decision.

The law says that young people over 12 can be old enough to have views about and begin to take responsibility for things that affect them.However, children under 12 should still be listened to.