Following on from Shona Young’s consideration of automatic parental rights and responsibilities (PRRs) for grandparents and siblings, I am going to consider whether step-parents should be able to obtain PRRs in respect of a step-child by way of an Agreement with the parent(s) – a further question posed by the consultation on reviewing Scottish child law.
It is suggested that if this were to be introduced, one possible advantage would be that it may reduce the number of applications being made by step-parents to the Court for PRRs. However, introducing PRRs by way of Agreement for step-parents would not be without its complications.
The first question is who would enter into the Agreement with the step-parent. In England and Wales, where there are two parents who have parental responsibilities, then both parents must enter into the Agreement which is clearly eminently sensible – it would not be appropriate at all for one parent to be able to bestow parental rights and responsibilities on a new partner without the agreement of the other parent.
However, even with that particular issue tackled, this area is not without difficulty. It is argued that such an Agreement essentially circumvents the child concerned being able to express a view. Without such Agreements in place, then the only option in terms for a step-parent looking to obtain PRRs is via an application to the Court. Before awarding PRRs, the Court has to be satisfied that it is in the best interests of the children, and must try and ascertain the child’s views, all of which such an Agreement would negate. Certainly, one can see the argument.
However, in Scotland there are already circumstances in which PRRs can be bestowed on individuals other than the child’s mother without the child’s views being obtained. Where a father does not have automatic PRRs (if a child is born before 4 May 2006, or after that date and his name is not on the birth certificate) then the mother can enter into an Agreement giving the father PRRs. In a Will, a person with PRRs can appoint a guardian for their child in event of their death, and that guardian essentially acquires the deceased parent’s PRRs. The views of a child do not require to be taken in either of those scenarios.
It is also noted that if both parents, and one or two step-parents were to have PRRs, that that may not be in the best interests of the child. One would expect that in the vast majority of cases, the step-parent’s views would be in line with those of their partner in terms of any decision to be made about the child, but that is of course not necessarily guaranteed. Furthermore, if the step–parent were then to separate from the child’s parent, then there are more than the two parents potentially disputing the care arrangements for the children, and in more general terms there is perhaps a question mark of the appropriateness of a step-parent having PRRs if they have separated from the child’s parent. However, the same would apply where PRRs had been acquired by court action.
Again, these are all difficult issues. In a modern family structure where parents have separated, and both gone on to find partners who are positive and loving influences on the child’s life, then there is a logic in the parents in those circumstances being able to bestow parental rights and responsibilities on their respective partners. If both parents agree that a partner should obtain parental rights and responsibilities, it is difficult to envisage that being done in circumstances which were not in the child’s best interests. Of course, even because a child does not like the idea of a step-parent having parental rights and responsibilities, does not necessarily mean to say that it would not be in the child’s best interests. The relationship between children and their step-parents can often be complicated, even where both parents have moved on.
Overall, it seems that the fact that the child’s views cannot necessarily be taken in this scenario may be the most unattractive aspect of this proposal. That said, there may be a practical way to resolve that issue.
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