Scottish Family Law for the Future – OPFS Survey

Scottish Family Law for the Future – OPFS Survey

OPFS is seeking your views on potential changes to the law covering parental ‘responsibilities and rights’ and ‘contact and residence’ relating to children when parents are no longer together. Scottish Government have issued a consultation document and we want to know what single parents think about some of the key questions to help inform our submission.

The full consultation on the review of  ‘Part 1 of the Children (Scotland) Act 1995’ can be found here. The following briefing gives some background information to the survey questions and OPFS initial views.

Complete Survey

What some of the language used means:

  • What is a single parent?

Generally speaking, public policy defines single parents as single adult heads of a household who are responsible for at least one dependent child, who normally lives with them.

The law in Scotland sets out what parents must do for their children (responsibilities) and the rights that parents have in relation to their children. There are certain things that parents are expected to do for their children while they are growing up. These are known as ‘parental responsibilities’. Along with this, there are certain things that parents are allowed to do to bring up their children. These are known as ‘parental rights’.

What are Parental Responsibilities and Rights for?

Parents have the responsibility to:

  • Safeguard and promote their child’s health, development and welfare
  • Give their child direction and guidance suited to his or her stage of development
  • Keep up their personal relationship and contact with their child – even they do not normally live with him or her.
  • Act as their child’s legal representative.

In as far as it’s practical and in the best interests of the child parents with these responsibilities also have rights so that they can carry out their responsibilities.

Who has Parental Responsibilities and Rights?

All mothers have these responsibilities and rights – only a court order can take any of them away. A father also has these responsibilities and rights, but only if:

  • He was married to the child’s mother at the time of their child’s conception or at any time after that or
  • He and the mother jointly registered their child’s birth on or after 4 May 2006 or
  • He has made and registered, together with the mother, a Parental Responsibilities and Parental Rights Agreement (PRPRA) or
  • He has been given them by a court order.
  • Residence & Contact Orders
    • A residence order regulates the arrangements made about where the child lives. This could include arrangements that the child should reside at different times with each of his or her parents and not just with one parent all of the time. It may also include residence with other people.
  • Contact orders set down the arrangements which should ensure the child has contact with people with whom he or she is not living.An order limiting or amending a parent’s right to maintain personal relations and contact with a child will only be made by the court if it is ‘ in the child’s best interests’. Residence and contact orders last until the child is sixteen.

Alternative Dispute Resolution is a means of settling any disputes outside the court-room. It is not meant to replace the courts and it is not a substitute for legal advice, however it can sometimes have advantages over going to court.

A birth must be registered within 21 days by the Registrar. The mother of a child always has parental responsibilities and rights in relation to the child, unless a court has removed them. Jointly registering the birth of a child has legal implicationsa child’s parents are both given parental responsibilities and rights if they register the child’s birth together and both of their names appear on the child’s birth certificate.

  • ‘Best Interests’ of the child

Legislation recognises the right of children and young people to be consulted about decisions in their lives and for those views to be considered in decision-making. This involves a set of key principles including:

  • The child’s welfare should be paramount in all decisions.
  • Children should have the opportunity to express views and have their views considered in decisions which affect them.

The first principle above is known as the ‘paramountcy principle’ and means that all decisions made should be in the ‘best interests’ of the child.

Background to OPFS Survey Questions

Questions 1 & 2. Please confirm what local authority you live in, and if you are a single parent.

Question 3.  What steps should be taken to help ensure that children continue to have relationships with family members, other than parents, who are important to them when their parents are separated?

Context: When parents of a child split up or where children are cared for out with

the family home, children should be able to maintain relationships with family members, other than the parents themselves, who are important to them. It is argued that family law in Scotland should reflect the changing nature of families and recognise that families come in all forms, and that a child’s welfare is supported when they are helped to maintain relationships that are important to them.

Question 4. Should the law take for granted that children benefit from contact with their grandparents?

Context: Grandparents can provide a significant support role for families particularly in relation to children who experience parental separation. However, OPFS believes this should be balanced with a focus on the child and the paramountcy of their best interests, along with taking account of their views. There is also the issue of a parent being denied contact and the grandparents being allowed contact and how to ensure that the grandparents don’t facilitate access to the parent.

Question 5. How should contact orders be enforced?

Context: Presently, if a person believes a contact order is broken they can go back to court and either seek a variation of the contact order or seek to hold the person breaching the contact order in contempt of court. The penalties are:

  • The max penalty which may be imposed for contempt of court by the Court of Session is two years’ imprisonment or an unlimited fine or both.
  • The max penalty which may be imposed for contempt of court by the sheriff court is three months’ imprisonment or a fine or both.

Research suggests that issues of non-compliance were very low – reported as generally being 5% or less of family actions or court business. The consultation document suggests the following options:

  • no change to existing procedure.
  • alternative sanctions. (eg unpaid work, attending a parenting class or compensation).
  • making a breach of a contact order a criminal offence with penalties including non-custodial sentences and unpaid work.
  • Other options

OPFS believes it is inappropriate to jail someone for failing to obey a contact order. Another option would be to seek mediation for enforcement of contact orders.

Question 6. Should DNA testing be compulsory to determine who the parent is where there is a dispute regarding this?

Context: A person can apply to the courts for a declarator of parentage or non-parentage. A person with a declarator of parentage may then use that to seek Parental Responsibilities and Rights.

The proposal in this consultation is that if the mother refused to consent to DNA testing of the child in a parentage or non-parentage case, the court would be empowered to require DNA tests if in line with the best interests of the child. It is, however, arguable that this would amount to a breach of the child’s rights in terms of Article 8 of European Convention on Human Rights, aside from the terms of Articles 7 and 8 of the United Nations Convention on the Rights of the Child.

Question 7. Should the term ‘parental rights’ be removed from the law?

Context: This question is asking whether it makes sense to focus on parental responsibilities or retain the current focus on rights and responsibilities. In favour of removal is that parental responsibilities would then become centre stage and therefore the best interests of the child would be given priority in the decision-making process. On the other hand, removing the term parental rights may negatively impact on parents, for instance, when dealing with social work services. OPFS believes there should be more emphasis on parents exercising rights on behalf of their children.

Question 8. Should the terms ‘contact’ and ‘residence’ be replaced by a new term such as ‘child’s order’?

Context: Currently the terms ‘contact’ and ‘residence’ are used in court orders. OPFS feels to change to ‘child’s order’ could cause confusion as the context and terms are understood. A child’s order is not 100% clear.

Question 9. Should a step parent’s parental responsibilities and rights (PRRs) agreement be established to avoid the courts becoming involved?

Context: Scottish Government are seeking views on whether to introduce a step parents parental responsibilities and rights agreement so that step parents could obtain PRRs without having to go to court. If established in Scotland, it could be registered and there would be a fee charged for registering an agreement. There are a number of pros and cons of establishing a PRRs agreement for step parents.

 Arguments in favour are:

  • A PRRs agreement for step parents could reduce the number of court

cases where step parents are seeking PRRs; and

  • A PRRs agreement for step parents could also enhance the role of the step parent and acknowledge that they might play an important role in the life of the child.

Arguments against are:

  • The proposal may not take full account of the views of the child on whether the step parent should have PRRs.
  • A PRRs agreement for step parents could mean both parents as well as a step parent having PRRs which may not be in the best interests of the child;
  • We would need to define exactly who would be regarded as “step parents” for the purpose of being eligible to complete and register an agreement; and
  • A step parent can already apply to the court to obtain PRRs.

OPFS believes there needs to be some safeguards as this could be used to acquire power over a mother in domestic abuse cases. There is also the need to consider on a case by case basis whether it is in the best interests of the child – safeguards in place via the courts.

Question 10.  Should all fathers be granted parental rights and responsibilities (PRR’s)?

Context: Scottish Government are seeking views on whether all fathers should automatically have PRRs in the same way as mothers without having to go through a court process. Currently all fathers are not automatically granted parental rights and responsibilities and must apply to the courts.

At present, OPFS is comfortable with the current position. It is evident who the mother is, but it is not clear in the same way who the father is. The people who have rights over children needs to be considered in relation to the best interests of the child. The rights of children mean that contact and PRRs are different. The decision on PRR should be made based on what is in the best interests of the child.

Question 11. Should the law allowing a father to be given PRRs by jointly registering a birth with the mother be backdated to before 2006?

This consultation asks whether the provision that fathers can obtain PRRs by jointly registering the birth should be backdated to before the year when it became law – 2006.  PRRs apply generally until the child obtains the age of 16. Therefore, from 2022 [i.e.16 years from 2006] there will no longer be any fathers who did not receive PRRs by jointly registering the birth.

Question 12. Should joint birth registration be compulsory (both parents named on the birth certificate)?

Context: Since 2006 an unmarried father can obtain parental rights and responsibilities by registering their name on birth certificate along with the mother. Making this compulsory would reduce the need for fathers to apply to the courts for their name to be put on the birth certificate.

However, this is potentially unworkable, compulsory joint birth registration assumes that the father is known which is not always the case and could lead those involved in domestic violence or sexual assault being given access to parental responsibilities and rights to the disadvantage of both mother and child. The proposal may also be a barrier to registration, which is a child’s right under UNCRC.

Question 13. Should it be taken for granted in law that a child benefits from both parents being involved in their life?

Context: Scottish Government are seeking views on whether to legislate that in contact and residence cases courts should presume that a child benefits from both parents being involved in their life.

However, there will be cases where a child does not benefit from both parents being involved in their life. In addition, any presumption in favour of shared parenting might cut across the key principle that the court shall regard the welfare of the child concerned as its paramount consideration. OPFS takes the view that the focus on the child and the paramountcy of their best interests, along with taking account of their views should be maintained without the introduction of any legal presumptions.

14a. Should the Scottish Government do more to encourage schools to involve non-resident parents (for example, parents who are separated or divorced) in education decisions?

Scottish Government are seeking views on how best to ensure that non-resident parents are kept informed by schools. In particular, they are seeking comments on pupil enrolment and annual updates to schools about information on pupils. OPFS is supportive of this where it is in the best interests of the child. Legislation needs to reflect the impact this can have in domestic abuse cases and education staff need to be aware of this.

14b. Should the Scottish Government do more to encourage health practitioners to share information with non-resident parents if it is in the child’s best interests?

Scottish Government are seeking views on how best to ensure that non-resident parents are kept informed by health boards and GP surgeries. OPFS is supportive of this where it is in the best interests of the child. Legislation needs to reflect the impact this can have in domestic abuse cases and education staff need to be aware of this.

14c Are there any other areas in which Scottish Government could do more to encourage involvement / share information with non-resident parents?

This question provides the opportunity to add in further comments around information given to non-resident parents and their participation in matters relating to their children.

Question 15. Should the Scottish Government act to try and stop children being put under pressure by one parent to reject the other parent?

Context: Scottish Government are seeking views on what action, if any, they should take to prevent ‘children being put under pressure by one parent to reject the other parent’. We note that the Children and Young People’s Commissioner Scotland has highlighted that “Parental Alienation Syndrome” has been robustly discredited and it should not play any part in court proceedings. See more.

We feel the question would have been better put as “Is there anything that could be done to make it easier for children to be able to maintain appropriate relationships with both parents?” We are all subject to external influences, including from family members. Children are no different. However, a parent may appear to be turning a child against another parent, but they are actually trying to protect the child. An example could be in cases where there are allegations of domestic abuse. OPFS considers that rather than legislation in this area, the resources would be far better spent on parental support and education.

Question 16. Should the Scottish Government do more to encourage Alternative Dispute Resolution (ADR) in family cases?

Context: Alternate Dispute Resolution (ADR) refers to ways of resolving dispute between parents such as:

  • Mediation Information and Assessment Meetings.
  • Better signposting and guidance.

Going to court to resolve family disputes can be stressful, expensive and time consuming. ADR is useful for cases that don’t reach court and don’t involve domestic abuse.

Question 17. We welcome your comments about anything regarding Family Law consultation and issues raised in this survey.

Questions 18 – 22. Some basic questions about you.

Complete Survey

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