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Parenting

The law deals with a number of different aspects of parenting. It specifies who are legally recognised as the parents of a child; it defines who has parental responsibilities and rights (PRRs) for a child; and the law gives some responsibilities to people who do not have PRRs, but who have care and control of children or treat them as a member of their family.

• Parents
• Being a parent
• Step-parents
• Responsibilities of people without PRRs
  

Parents

The law defines who a child's parents are. The basic rules are these:

• The woman who gives birth to a child is the child's mother. Note that this is the case even if the egg was donated by another woman - the law does not recognise the egg donor as the child's parent.
• Except where conception was via sperm donation conducted by a licensed fertility clinic, the man from whose sperm the child was conceived is the child's father.
• Where conception is via sperm donation conducted by a licensed fertility clinic, the sperm donor is not legally recognised as the father. If the mother is married, her husband is legally recognised as the father. If the mother has a male partner who attends the fertility clinic with her, he is recognised as the father. In other cases, for example where the mother has no partner, or has a female partner, the mother is the only legally recognised parent of the child.

Gender recognition does not change a person's legal status as a parent, so that, for example, a transsexual woman who had a child while she was still legally regarded as a man continues to be the legal father of the child after she obtains gender recognition as a woman.

The only way a child's parents can be changed is through adoption. In Scotland, the rules for adoption are as follows:

• A married couple can apply to adopt a child jointly. In this case, they become the mother and father of the child, and the child's original parents (if still alive) cease to be the child's parents.
• One person can apply to adopt a child. That person can be in a relationship with another person, who can be their civil partner, or their cohabiting partner. The adopter becomes the child's sole parent, and the child's original parents (if still alive) cease to be the child's parents. If the adopter has a partner, that partner is not recognised as the child's other parent, even if they are the civil partner of the adopter.
• The married spouse of a parent can adopt their spouse's child - known as 'step-parent' adoption - legally, step-parent adoption changes a step-parent into a parent. The child's other parent, if they are still alive, ceases to be recognised as parent. At present in Scotland, the civil partner of a parent cannot 'step-parent' adopt their partner's child.
• In all cases, the consent of the child's original parents (if they are still alive) to the child being adopted is usually required, and the adopter(s) must be aged at least 21 and the child must be under 18.
• Finally, there is a special simplified form of adoption available to a couple who have arranged for another woman to have a child for them in a surrogate pregnancy, but at present that special form of adoption is only available to married couples.

The Adoption and Children (Scotland) Bill, which was passed by the Scottish Parliament on 7th December 2006, and will come into effect some time in 2007, will allow two civil partners, or a cohabiting same-sex or mixed-sex couple, to apply to adopt jointly for the first time in Scotland. In addition, the new bill will enable the civil or cohabiting partner of a parent to apply to 'step-parent' adopt their partner's child.

Being a parent

Legally, being a parent means:

• A child's parent has a duty to financially support the child, under the Child Support Act 1991.
• A child has a right to inherit part of their parent's estate when their parent dies, under the common law rule of 'legitim'.

But parents also have other parental responsibilities and rights (PRRs). The law on parental responsibilities and rights (PRRs) is set out in the Children (Scotland) Act 1995. They include:

• The responsibility to safeguard and promote the child's health, development and welfare.
• The responsibility to provide direction and guidance to the child, and the right to control, direct or guide the child's upbringing.
• The right to have the child living with you, or to have a say in the child's residence.
• The responsibility and right to maintain personal relations and contact with the child.
• The responsibility and right to act as the child's legal representative.

Once the child reaches the age of 16, the only PRR which still applies is the responsibility to provide guidance to the child, which applies until the child reaches 18. No-one has parental rights of control over a young person aged 16 or over.

The law gives all these PRRs to some people automatically. A court can grant some or all of the PRRs to other people, where it is in the best interests of the child to do so. A court can also take some or all PRRs away from a person, where it is in the best interests of the child.

The people who get PRRs automatically are the child's mother, and the child's father, if any of these circumstances apply: 

• He is named as the father on the child's birth certificate, and the birth certificate is dated on or after 4th May 2006.
• He is married to the mother at any time after the child's conception (he gets PRRs for the child as soon as he marries the mother).
• He and the mother sign a formal agreement that he should be granted all PRRs for the child - the agreement must be registered with the court and cannot be rescinded.

Under the Children (Scotland) Act 1995, the sheriff court can change PRRs, by taking some or all PRRs away from a person, or by granting some or all PRRs to a person who does not currently have them. This means that people who are not the child's parents can be granted PRRs for the child, and more than two people could have PRRs for a child.

The court can only make changes to PRRs where it would be better for the child to make the change - the child's welfare is paramount, and the child's views will be taken into account. The court can also make a residence order, specifying with whom a child should live, or a contact order, regulating the arrangements for personal relations and contact between the child and people with whom the child does not live.

These kinds of orders can be made when a parent divorces or dissolves their civil partnership. They can also be made at any other time, and applications for such orders can be made to the court by anyone with PRRs already; anyone with an interest in the child; or the child him-/herself.

In particular, although it is not yet possible for the same-sex partner of a parent to adopt their partner's child, it is currently possible for them to apply for PRRs for their partner's child. The Children (Scotland) Act 1995 does not discriminate on grounds of sexual orientation or transgender identity. Legal advice from a solicitor with experience of such applications is recommended.

Step-parents

If you are the civil partner or married partner of the parent of a child, but you are not the child's parent, you are, legally, the child's step-parent. However, being a step-parent does not give you parental responsibilities and rights for your step-child - for those you need to apply to court, as explained above.

Responsibilities of people without PRRs

Parents of a child and people with PRRs for a child are not the only people with responsibilities towards the child.

Under section 5 of the Children (Scotland) Act 1995, any person over 16 who has care and control of a child under 16, has responsibility to safeguard the child's health, development and welfare, and in order to do so, can consent to medical treatment for the child if the child or parents cannot do so themselves.

Under the Family Law (Scotland) Act 1985, any person who accepts a child as a child of their family has a responsibility to financially support the child.

This would include the same-sex partner of the child's parent, where that partner treated the child as part of their family. Under the Education (Scotland) Act 1980, any such person also has the responsibility to ensure that the child attends school regularly.