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Parenting

This page outlines the legal situation around parents and children. See also our book ‘LGBT Pathways to Parenthood’ to read about LGBT people’s experiences of parenthood, and for additional legal notes.

The law deals with a number of different aspects of parenting. It specifies who are legally recognised as the parents of a child. It defines who has parental responsibilities and rights (PRRs) for a child – the people with PRRs are not necessarily the child’s parents. And the law gives some responsibilities for a child to people who do not have PRRs, but who have care and control of the child or treat the child as a member of their family.

The law defines who a child’s parents are. The rules changed on 6th April 2009 when the Human Fertilisation and Embryology Act 2008 came into force. The basic rules for children conceived on or after that date are these:

  • The woman who gives birth to a child is the child’s mother. Note that this is the case even if the egg was donated by another woman – the law does not recognise the egg donor as the child’s parent.
  • If the conception resulted from sexual intercourse with a man, he is the legal father.
  • If the conception resulted from donor insemination or fertility treatment then
    • If the mother was in a civil partnership or was married at the time of the donor insemination or fertility treatment, her civil partner or spouse is the child’s other legal parent, unless they did not consent to the insemination / treatment. The sperm donor is not a legal parent of the child. These rules apply whether the treatment was at a licensed fertility clinic, or was do-it-yourself donor insemination.
    • If the mother is not in a civil partnership or married at the time of donor insemination or fertility treatment, and the insemination / treatment is done at a licensed fertility clinic, then the mother can at the time of the treatment nominate another person to be the child’s other parent. This could be her cohabiting partner for example. It cannot be a close relative such as her sister, brother, mother, father, daughter or son. Provided the nominated person agrees in writing, they will become the child’s other parent. The sperm donor is not a legal parent of the child.
    • If the mother is not in a civil partnership or married, and she conceives via do-it-yourself donor insemination, then the sperm donor is the child’s legal father.

Note that the rule on children conceived by do-it-yourself donor insemination is completely different depending on whether the mother was in a civil partnership / married, or was not, at the time of the insemination.

For children conceived by donor insemination or fertility treatment before 6th April 2009, the rules are different:

  • If the conception was via do-it-yourself donor insemination, the sperm donor is the legal father, whether or not the mother is in a civil partnership / married. The mother’s partner is not a legal parent, unless they adopt the child.
  • If the conception was via insemination / fertility treatment at a licensed fertility clinic, the sperm donor is not a legal parent of the child. If the mother has a husband or male partner, he can be recognised as the child’s father, but a civil partner or other female partner will not be recognised as the child’s parent, unless she adopts the child.

Gender recognition does not change a person’s legal status as a parent, so that, for example, a transsexual woman who had a child while she was still legally regarded as a man continues to be the legal father of the child after she obtains gender recognition as a woman.

Adoption

The way a child’s legal parents can be changed is through adoption. The rules for adoption are as follows:

  • a couple who are married or in a civil partnership can apply to adopt a child jointly. A mixed-sex or same-sex couple who are living together as if they were married or in a civil partnership, in “an enduring family relationship”, can apply to adopt a child jointly. When a couple adopt jointly, they become the two parents of the child, and the child’s original parents (if still alive) cease to be the child’s parents.
  • a single person (that is, a person who is not living with a partner) can apply to adopt a child. If the adoption is granted, the person becomes the child’s only legal parent.
  • the partner of a parent can apply to adopt their partner’s child – known as ‘step-parent’ adoption – legally, step-parent adoption changes a step-parent into a full legal parent. This kind of adoption is available to the same-sex or mixed-sex partner of a parent, so long as the partners are civil partners or married, or are living together as if they were civil partners or married, in “an enduring family relationship”. If the adoption is granted, the child’s other original legal parent, if there is one, ceases to be recognised as parent.
  • in all cases, the consent of the child’s original parents (if they are still alive) to the child being adopted is usually required, and the adopter(s) must be aged at least 21 and the child must be under 18.
  • finally, there is a special simplified form of adoption, known as a “parental order”, available to a couple who have arranged for a woman to have a child for them in a surrogate pregnancy. Parental orders are available to married couples, civil partners, and same-sex or mixed-sex couples who are living together as partners in “an enduring family relationship”.

Parental responsibilities and rights

What does being a parent mean legally? By itself it means:

  • a child’s parent has a duty to financially support the child, under the Child Support Act 1991
  • a child has a right to inherit part of their parent’s estate when their parent dies, under the common law rule of ‘legitim’.

Otherwise, being a parent in itself gives no further responsibilities or rights – these come with having legal parental responsibilities and rights.

The law on parental responsibilities and rights (PRRs) is set out in the Children (Scotland) Act 1995. PRRs include:

  • the responsibility to safeguard and promote the child’s health, development and welfare
  • the responsibility to provide direction and guidance to the child, and the right to to control, direct or guide the child’s upbringing
  • the right to have the child living with you, or to have a say in the child’s residence
  • the responsibility and right to maintain personal relations and contact with the child
  • the responsibility and right to act as the child’s legal representative.

Once the child reaches the age of 16, the only PRR which still applies is the responsibility to provide guidance to the child, which applies until the child reaches 18. No-one has parental rights of control over a young person aged 16 or over.

The law gives all these PRRs to some people automatically. A court can grant some or all of the PRRs to other people, where it is in the best interests of the child to do so. A court can also take some or all PRRs away from a person, where it is in the best interests of the child.

The people who get PRRs automatically are:

  • the child’s mother
  • the child’s other legal female parent, if there is one under the rules above for donor insemination / fertility treatment done on or after 6th April 2009, if any of the following circumstances apply:
    • she is named as the other parent on the child’s birth certificate, or
    • she was the mother’s civil partner at the time of the insemination / fertility treatment, or
    • she and the mother sign a formal agreement that she should be granted all PRRs for the child – the agreement must be registered with the court and cannot be rescinded
  • the child’s legal father, if there is one under the rules above, if any of the following circumstances apply:
    • he is named as the father on the child’s birth certificate, and the birth certificate is dated on or after 4th May 2006, or
    • he is married to the mother at any time after the child’s conception (he gets PRRs for the child as soon as he marries the mother), or
    • he and the mother sign a formal agreement that he should be granted all PRRs for the child – the agreement must be registered with the court and cannot be rescinded
  • a person who adopts the child, or who is granted a parental order following a surrogacy arrangement.

Under the Children (Scotland) Act 1995, the sheriff court can change PRRs, by taking some or all PRRs away from a person, or by granting some or all PRRs to a person who does not currently have them. This means that people who are not the child’s legal parents can be granted PRRs for the child, and that more than two people could have PRRs for a child.

The court can only make changes to PRRs where it would be better for the child to make the change – the child’s welfare is paramount, and the child’s views will be taken into account. The court can also make a residence order, specifying with whom a child should live, or a contact order, regulating the arrangements for personal relations and contact between the child and people with whom the child does not live.

These kind of orders can be made when a parent divorces or dissolves their civil partnership. They can also be made at any other time, and applications for such orders can be made to the court by anyone with PRRs already, or anyone else with in interest in the child, or the child themself.

As an alternative to step-parent adoption (see above), the same-sex partner (whether the civil partner or the cohabiting partner) of a parent can apply for PRRs for their partner’s child. The Children (Scotland) Act does not discriminate on grounds of sexual orientation or transgender identity (although in the past the courts have discriminated when applying the Act). We know of several cases where such an application has been successful. Legal advice from a solicitor with experience of such applications is recommended.

Step-parents

If you are the civil partner or married partner of the parent of a child, but you are not the child’s other legal parent, you are, legally, the child’s step-parent. The law recognises the family connection between step-parent and step-child for a number of purposes, for example, succeeding to a tenancy, or being able to claim damages from a person causing the death of a family member. However, being a step-parent does not give you parental responsibilities and rights for your step-child – for those you need to adopt the child or apply to court for PRRs, as explained above.

Responsibilities of people without PRRs

Parents of a child and people with PRRs for a child are not the only people with responsibilities towards the child. Under section 5 of the Children (Scotland) Act 1995, any person over 16 who has care and control of a child under 16 has responsibility to safeguard the child’s health, development and welfare, and in order to do so can consent to medical treatment for the child if the child cannot do so themself and the parents are not known to object. This means that the same-sex partner of a parent, who shares the parenting of their child, can consent to medical treatment in these circumstances, even if they have not adopted, or been granted PRRs for, the child.

Under the Family Law (Scotland) Act 1985, any person who accepts a child as a child of their family has a responsibility to financially support the child. This would include the same-sex partner of the child’s parent, where that partner accpeted the child as part of their family. Under the Education (Scotland) Act 1980, any such person also has the responsibility to ensure that the child attends school regularly.

Fostering

A child who is being looked after by the local authority may be placed with foster carers. The Looked After Children (Scotland) Regulations 2009 removed the discrimination against same-sex couples from fostering law. Local authorities must not discriminate against same-sex couples in considering requests to be foster parents, and they must not discriminate against single LGBT people, compared with any other single people. Applications to become foster parents can be made to the local council – this is often the first step on the road to applying to adopt a child.

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