Section 2 of the Children’s (Scotland) Act 1995 sets out “parental rights”. These are the rights that parents have so they can properly fulfil their parental responsibilities (the other half of Parental Responsibilities and Rights).
At XK Family Law Solicitors Aberdeen, we help parents understand what these rights mean in real life, and how the courts interpret them in practice during separation, divorce (and financial disputes), or disputes about children.
What Are Parental Rights?
Parental rights are the legal powers parents have to make decisions about their children’s lives. They assist parents carry out their duties owed towards their children under Section 1 of the Act (parental responsibilities).
The main parental rights are:
1. Decide Where a Child Lives
Parents have the right to have their child live with them or to decide the child’s residence.
This doesn’t mean one parent can just take over and begin controlling the child – it simply means that if you have parental rights, you have a say in where your child should live.
Why it matters: When couples separate, disputes can arise about the family home or the residence of a child. Parental rights ensure both parents’ voices are considered when deciding where a child should reside. Ultimately, if parents can’t agree, the court decides based on the child’s best interests and the evidence provided to the court by the parties. Very often, depending on the child’s age, the court will ask the child for their opinion where appropriate. The older the child, the more weight a sheriff will give the child’s view or opinion in deciding the case.
2. Direct and Guide the child(ren)
Parents have the right to direct and guide their child, in a way that’s appropriate for the child’s age and stage of development.
This covers things like:
- Choosing schools.
- Deciding on medical care.
- Setting boundaries, discipline, and routines.
Why it matters: Parents may require legal authority to make big decisions for their child. A Parental right only allows parents to carry out their Parental responsibility to safeguard the health, development, and welfare of their child.
3. Contact – if the Child Resides with your ex
If a child doesn’t live with a parent, that parent has the right to maintain personal relations and regular contact.
This ties directly to the parental responsibility in Section 1 of this Act – maintaining a meaningful relationship even if the child is not living with you. The court sees it as a non-residential parent’s responsibility to maintain contact and build a relationship with their child. The court will step in where asked, to assist a non-residential parent exercising their parental responsibilities where necessary. A residential parent cannot simply block a non-residential parent from reasonable contact without good reason. That good reason must show that contact is not in the child’s best interest.
Why it matters: This is the legal foundation for contact rights in Scotland. If a parent is being unreasonably denied reasonable contact, they can attend court to enforce this Parental right, provided it is in the child’s best interests.
4. Act as the Child’s Legal Representative
Parents have the right to act for their child in legal matters – for example:
- Signing documents.
- Representing them in court proceedings.
- Making legal or contractual decisions until they are old enough.
Shared Rights – Can Each Parent Act Alone?
If both parents have parental rights, each parent can often exercise their rights independently without needing the other’s consent (unless a court order or written agreement says otherwise).
Example: Either parent can sign a school trip consent form.
Exception: Decisions about removing a child from the UK require both parents’ consent if both have rights both are involved in the child’s life.
Travel and Relocation Rules
One of the most important protections in Section 2 is about taking children abroad:
- A parent cannot remove a child who lives in Scotland from the UK without the other parent’s consent, if both have parental rights.
- This means one parent can’t just move abroad or take a child on a permanent relocation without agreement or a court order.
- Even for holidays, if the other parent refuses consent, a court order may be required.
Why it matters: This rule protects children from being wrongfully removed from their home country (or even their home county) without proper agreement. It also ensures that both parents remain involved in major decisions, and indeed in the child’s life. It also prevents controlling parents using a child as a weapon to punish the other. Although relationships breakdown between parties, and relationship breakdowns can be hostile, it does not mean one parent gets to control the child to the detriment of the other. If you require to take your child outwith the UK and your ex partner does not agree, you will require a Specific Issue Order (SIO). XK Solicitors in Aberdeen can advise you on your circumstances and apply to the court for a SOI.
Who Counts as a “Child”?
For parental rights, a child means someone under 16. After 16, young people generally gain legal capacity to make their own decisions.
Parental Rights vs Parental Responsibilities
It’s vital to remember:
- Responsibilities come first.
- Rights exist only to help parents meet their responsibilities.
For example, the right to contact exists because parents have the responsibility to maintain a relationship. Scottish law is child-centred – rights can only be exercised if it’s in the best interests of the child.
Case Law Example
In White v White (2001), the Scottish courts stressed that the welfare of the child is the paramount consideration. Even though parents have rights, those rights must always be exercised to promote the child’s wellbeing.
Conclusion
Section 2 of the Children’s (Scotland) Act 1995 gives parents the legal rights needed to carry out their duties. These rights include deciding where a child lives, guiding their upbringing, maintaining contact, and acting as their legal representative.
However, these rights are not unlimited – they must always be exercised for the child’s benefit, and never against their interests. If something is not in a child’s interest, your ex can apply for a court Order preventing you from acting in a manner which is not in your child’s interest. The opposite applies, if something is in a child’s best interest a court Order can be applied for to implement it into the child’s life.
At XK Family Law Solicitors Aberdeen, we can help if you are:
- Struggling to agree on residence or contact.
- Facing a relocation dispute.
- Unsure about your parental rights after separation.
Ready to discuss your case?
Email XK Family Law Solicitors in Aberdeen at:
info@xksolicitors.co.uk
Our website articles are not legal advice. We accept no responsibility for use of this information.
For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.