The Children’s (Scotland) Act 1995 and the Human Fertilisation and Embryology Act 2008 (“2008 Act”) work together to define how and when a second female parent acquires parental rights and responsibilities (PRRs).
Section 4A of the 1995 Act deals with second female parents. This section allows a child’s mother and her female partner to enter into a formal agreement giving the second female parent full PRRs. Similar to what we discussed in our article on fathers gaining parental rights here. The law was introduced to ensure that two female parents can secure the same legal recognition as opposite sex couples, provided the correct process is followed.
What Does Section 4A Say?
Section 4A applies in circumstances where:
- The child’s mother still has her PRRs (i.e. she has not been deprived of them by a s.11 court order).
- The child has another female parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008, but that parent is not formally registered as such on the child’s birth certificate.
In that situation, the mother and the second female parent can make a written Parental Rights and Responsibilities Agreement. Once properly executed and registered, this gives the second female parent the same legal standing as if she were recognised under section 42 of the 2008 Act (which applies to female partners in a civil partnership or marriage with the mother at the time of conception).
How Is the Agreement Made?
The rules mirror those for unmarried fathers under section 4 of the 1995 Act as discussed here. The agreement must:
- Be in the correct prescribed form set by law.
- Be signed by both the mother and the second female parent.
- Be registered in the Books of Council and Session in Edinburgh.
The date of registration is known as the “appropriate date,” and from that point the second parent acquires full PRRs.
Like agreements under section 4, once registered this agreement is legally binding and cannot be revoked informally. It can only be altered by a court under section 11 of the 1995 Act if circumstances change and such a variation is in the best interests of the child.
Why Is Section 4A Important?
Before the law was updated, same-sex parents often faced uncertainty about their legal status, particularly if they were not married or in a civil partnership at the time of conception. Section 4A provides a clear and straightforward route for a second female parent to gain full parental recognition without needing to go to court, provided the mother agrees.
This means that both parents can:
- Make important decisions about the child’s upbringing, health, and education.
- Act as the child’s legal representative.
- Ensure continuity of care and legal security for the child.
In practice, this provision helps protect children in same-sex families by ensuring they are legally connected to both of the people raising them. Rather than one parent holding all the power over the child.
What If the Mother Does Not Agree?
If the mother refuses to enter into an agreement, the second female parent does not automatically acquire PRRs under section 4A. However, she still has the option to apply to the court under section 11 of the 1995 Act. The court will then decide whether to grant PRRs, always applying the principle that the welfare of the child is the paramount consideration.
Scottish courts have been clear in numerous cases that stability, continuity, and the best interests of the child will outweigh the wishes of either parent. This means that, in many cases, if the second parent, who does not have legal recognition by way of section 4A of the 2008 Act, has played an active role in the child’s life and claims an interest in the child, the court can consider granting PRRs even if the mother initially objects.
Conclusion
Section 4A of the Children’s (Scotland) Act 1995 provides a vital legal mechanism for same-sex parents. It allows a second female parent to acquire parental rights and responsibilities by simple agreement with the child’s mother, provided it is properly registered. This strengthens legal certainty for families and helps ensure that children are protected by having both acting parents recognised in law.
For parents considering such an agreement, or for those facing difficulties where agreement cannot be reached, it is important to seek legal advice. At XK Family Law Solicitors Aberdeen, we can guide you through the process of creating and registering a PRR agreement or applying to court where necessary.
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For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.