In Scotland, parental responsibilities and parental rights (PRRs) are the legal duties and powers parents have in relation to their children. Sections 1 and 2 of the Children’s (Scotland) Act 1995 explain what PRRs are (duties like safeguarding a child, and rights like deciding where they live).

But Section 3 of the above 1995 Act answers a different, and practical question:
Who actually has parental responsibilities and rights?

This article explains Section 3 of the 1995 Act.

Mothers Automatically Have PRRs

The law is simple here, a child’s mother always has parental rights and responsibilities, whether or not she is married to, or in a civil partnership with, the child’s father (Section 3(1)(a)).

This means that from birth, mothers can:

• Make decisions about the child’s upbringing.
• Decide where the child lives, what religion it is, where it attends schools etc.
• Act as the child’s legal representative.

Fathers – When Do They Have PRRs?

For fathers, the position is slightly different and it depends on their relationship with the mother:

1. If married to (or in a civil partnership with) the mother – the father will have PRR at the time of the child’s conception or later. Section
   3(1)(b)(i) provides married fathers with automatic PRRs.
2. If the father isn’t married or in a civil partnership? Section 3(1)(b)(ii) provides the father will have PRRs if he is named on the child’s birth certificate (this has been the case in Scotland since 2006).

If a father is not married to the mother and is not named on the child’s birth certificate, then the father will not automatically have PRRs. However, he can still obtain PRR through:

• An agreement with the mother (a “Parental Responsibilities and Parental Rights Agreement”).
• A court order under Section 11 of the 1995 Act, which then also will allow the father to obtain a court Order for contact. We have done many of these cases at XK Solicitors.

Same-Sex Parents and Fertility Treatment

The law also recognises parents under the Human Fertilisation and Embryology Act 2008:

• A woman in a civil partnership or marriage with the mother at the time of fertility treatment can be recognised as a legal parent with PRRs under section 3(1)(c) of the Act (due to their relationship).
• If not married/partnered, she can still obtain PRRs if registered as a parent on the child’s birth certificate under section 3(1)(d).

This ensures equality for same-sex parents in Scotland.

Can Both Parents Exercise Rights Independently?

Yes, if two or more people have PRRs, each can exercise their rights without the consent of the other, unless:

• There is a court order saying otherwise, or
• There is a written agreement limiting how rights are used.

For example, either parent can usually sign a school form or take a child to the doctor etc.

Moving a Child Abroad

One very important rule which often comes up in family law:

• A parent cannot remove a child who normally lives in Scotland outwith the UK without the consent of everyone else who has PRRs.
• If both parents have PRRs, both must consent.
• If consent cannot be agreed, sheriff intervention is likely required by way of raising a court action.

This protects children from being taken abroad without agreement or where one parent wishes to control the other parent, or for self-serving purposes without considering the child’s best interests. If you believe your ex partner is planning to take your child outwith the UK, XK Solicitors can apply to the court for a block on all UK ports to prevent them from travelling.

Limits on PRRs

Having parental rights doesn’t mean you can use them in any way you like. Section 3 makes clear that:

• PRRs must not be exercised in a way that conflicts with a court order relating to the child.
• They must not conflict with a compulsory supervision order or other Orders from from a Children’s Hearing.

In short: parental rights are powerful, but they are always subject to the welfare of the child and where the court is involved… subject to court oversight.

Can PRRs Be Delegated?

Parents cannot give up or sign away their parental responsibilities and rights.

• They can, however, arrange for someone else to help exercise them (e.g. agreeing that a grandparent looks after the child on their behalf).
• But the parent remains legally responsible if those duties are not carried out.

Why This Matters in Practice

Understanding Section 3 is essential for separated parents, same-sex parents, and anyone involved in child law in Scotland:

• Mothers always have PRRs.
• Fathers need marriage or birth registration (if you’re not married, ensure you’re on the birth certificate).
• Both parents must consent for big decisions like taking a child abroad.
• Court orders override parental rights.

Case Law Example

In Fourman v Fourman (1998), the court confirmed that even though a parent has the right to decide where a child lives, this cannot be exercised in a way that removes the child from Scotland without the consent of the other parent (or the court). This case is a clear example of how PRRs are always exercised in the child’s best interests, not just the parent’s wishes.

Conclusion

Section 3 of the Children’s (Scotland) Act 1995 explains who has parental rights and responsibilities and how they can be used. The key takeaways are:

• Mothers always have PRRs.
• Fathers only have PRRs automatically if married to the mother or named on the birth certificate.
• Same-sex parents are recognised under modern legislation.
• PRRs cannot override court orders or be used to remove children from Scotland without consent.

At XK Family Law Solicitors Aberdeen, we specialise in helping parents resolve disputes about PRRs, residence, and contact.

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