The significant divide between Scotland and England & Wales on the termination or restriction of parental rights and responsibilities. Is it time for a change?

The Victims and Prisoners Bill became law last week as it achieved Royal Asset as part of the parliamentary wash-up period. As a result, how parental responsibilities in England & Wales are regulated will be substantially altered.

There are significant differences between Scotland and England & Wales regarding their statutory provisions which relate to children and their welfare, including the operation of parental responsibilities.

The Children (Scotland) Act 1995 (and its successor, the 2020 Act, which is yet to come into full force) makes provision for Parental Responsibilities (Section 1) and Parental Rights (Section 2). Although the description of those responsibilities and rights appears at first glance to be largely the same, there are subtle but important differences.

In England and Wales, the Children Act 1989 is the relevant legislation. Section 3 sets out the meaning of ‘Parental Responsibility’ as “…all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” The definition includes reference to ‘rights’ whereas the Scottish legislation addresses this separately.

The Victims and Prisoners Act includes “Jade’s Law” which will restrict Parental Responsibility where one parent kills the other. It will amend the provisions of the Children Act 1989 to provide that the Crown must make a prohibited steps order when sentencing the offender (a parent) who has been convicted of murder or voluntary manslaughter of the other parent. The intention is that no step which could be taken by a parent in meeting their parental responsibility for a child may be taken by the offender with respect to the child without the consent of the High Court or the family court, and that those steps will have effect until the order is varied or discharged by the High Court or the family court.

The Victims and Prisoners Act goes further. It provides that the prohibited steps order will not cease to have effect if the accused parent is acquitted of murder or manslaughter on appeal. In those circumstances, it is proposed that the Local Authority bears a duty to lodge a review application of the prohibited steps order with the Court within 14 days of the acquittal being recorded.

The intention of the legislative amendments is to ensure a proactive approach to children and family cases where there has been the commission of a serious criminal offence. The responsibility will shift to the Local Authority, rather than the family themselves, to shield the families involved from the burden of initiating proceedings and meeting legal costs.

What is the position in Scotland?

Currently, there is no provision available to a Judge or a Sheriff in criminal proceedings, which allows them to restrict or limit the operation of Parental Responsibilities or Rights or a parent who has been convicted of a serious offence committed against the ‘other parent’ or a child.

Section 11(2)(f) of the 1995 Act allows for the granting of an interdict prohibiting the taking of any step of a kind specified in the interdict in the fulfilment of parental responsibilities or the exercise of parental rights relating to a child or in the administration of a child’s property. This is similar to the ‘prohibited steps Order’ found in Section 8(1) of the 1989 Act, but arguably has a wider application on the basis that it is not simply restricted to ‘a parent’.

In Scotland, a Court may suspend or extinguish a person’s parental responsibilities and/or rights in several ways. These can include:

1. The granting of an order in terms of Section 11(2) of the 1995 Act
2. The granting of an adoption order
3. The granting of a Permanence Order

All of the above are done in the context of ‘civil’ proceedings. Currently, family members or children, who have been victims of a serious offence perpetrated against them, will require to raise proceedings at their own instance in Court. State funding is not necessarily guaranteed. There is the prospect of the proceedings being defended by the offender; which may further add to the emotional stress and trauma suffered by the victim/s.

The Court requires to apply a ‘welfare’ based test when considering making orders relating to children. The Court must have specific regard to a party’s behaviour where there is alleged, or founded, domestic abuse, or a risk of it. There is however no presumption in favour of an order being granted to one party where the other has been accused or convicted of a serious offence.

It may be time for change. Until then, the legal position in Scotland remains that actions involving the restriction or termination of a party’s parental responsibilities or rights must be made in separate ‘Civil’ Court proceedings, regardless of the nature and effect of the offence that that party has been convicted of.