Parents normally hold parental rights and responsibilities (PRRs) under the Children’s (Scotland) Act 1995 (“1995 Act”). But situations can arise where another adult, such as a grandparent, step-parent, or family friend looks after a child without having PRRs. Section 5 of the 1995 Act sets out the duties and limited powers of such adults. It ensures that children are safeguarded, even when cared for by someone who is not their legal parent or guardian.
The Duty to Safeguard the Child’s Welfare
Under section 5(1) of the 1995 Act, any person over the age of 16 who has care or control of a child under 16, but who does not have parental responsibilities or rights – must still take reasonable steps to look after the child’s health, development and welfare.
This means that if you are temporarily responsible for a child, for example if you are babysitting, caring for a grandchild, or the child is staying with you, you are legally obliged to act in a way that promotes the child’s wellbeing. The law recognises that children need protection, regardless of whether they are with their parents or someone else.
Consent to Medical Treatment
Section 5 also deals with medical consent.
Where a child cannot consent to treatment themselves (either because they are too young or lack the maturity to understand the procedure), the adult who has care or control of the child can give consent to surgical, medical, or dental treatment, even if they do not have PRRs.
However, two conditions must be met:
- The child must not be able to give consent on their own behalf. Under the Age of Legal Capacity (Scotland) Act 1991, children under 16 can sometimes give their own consent if they are mature enough to understand the treatment – a principle known as Gillick competence. If the child is able to consent, their consent takes priority.
- The adult must not know that a parent would refuse consent. For example, if a parent has clearly stated that they do not want a particular medical treatment for their child, another adult with temporary care cannot override that.
This provision ensures that in an emergency or urgent situation, a responsible adult can authorise treatment for a child to protect their health and welfare, without waiting for the parent’s signature.
Important Limitation – Schools
Section 5(2) makes it clear that this responsibility does not apply to teachers or others in a school setting. Schools have separate legal duties and frameworks under the Education (Scotland) Act 1980 and subsequent legislation.
Why Section 5 Matters
Section 5 recognises the reality that children are not always in the immediate care of their parents. Grandparents, relatives, foster carers, and even family friends may often be responsible for a child’s day-to-day safety and wellbeing. The law ensures that:
- Adults in charge of a child must act reasonably to safeguard them.
- Those adults can authorise medical or dental care in appropriate circumstances.
- Parents’ ultimate authority is respected, unless overridden by the courts in specific cases.
This balance helps to protect children while providing clarity for the adults who care for them.
Conclusion
Section 5 of the Children’s (Scotland) Act 1995 places a duty on any adult over 16 who has care or control of a child to act in the child’s best interests, even if they do not have parental rights. It also gives those adults the power to consent to medical treatment where necessary, provided the child cannot consent and there is no known parental objection.
For parents, carers, and relatives, understanding this section of the law is important. It offers reassurance that children’s welfare is safeguarded, but it also highlights the limits of authority where PRRs are not held.
If you are caring for a child and are uncertain about your legal position, or if you are a parent wishing to clarify who may make decisions for your child, XK Family Law Solicitors Aberdeen can provide expert advice tailored to your circumstances.
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