A handy tool for the family lawyer

The Children (Scotland) Act 1995 clearly states who does and who does not have parental responsibilities and rights in respect of any child.  The most appropriate way of altering the position (short of marriage between previously unmarried parents) is by craving all or any of the responsibilities and rights in an action under section 11. Affidavit or parole evidence is produced and the Sheriff makes his decision based upon that evidence applying the criteria set out in section 11(7).

The anomalous section 4 permits an unmarried father to share the whole package of responsibilities and rights with the child’s mother by way of a very informal step based upon no evidence and having to fulfil none of the criteria of the Overarching Principles which inform the whole policy of the Act.  There is no test that the agreement under section 4 is in the interests of the child, nor that it is necessary. In respect of the child’s views there is no test that the child has even been informed. Surprisingly, there is not even a requirement that the mother should have a minimum period after the birth during which she can be asked to give consent. An important limitation of the section 4 procedure is that it can only be used by the natural parents of the child.  Stepparents and others with actual care of children are excluded and if they should wish to obtain parental responsibilities and rights they must apply in the usual way under section 11.

In many – even in most – cases such a formal order is unnecessary. The unmarried but cohabiting father or stepfather is de facto discharging the parental responsibilities of caring for the child’s welfare.  The child in these cases does not normally suffer disadvantage by the fact of the father’s or stepfather’s legal position.  It may be however that the father or stepfather may meet with obstruction from the doctor’s receptionist, from the school secretary or from any one of countless officials and functionaries with whom a parent has to deal in the interests of a child.  The unmarried father or stepfather is unable to give consent on behalf of the child because he has no authority to give it.  

In cases of medical emergency no problem should arise – section 5 of the 1995 Act allows and indeed requires any person with care of a child under the age of 16 to do what is reasonable in all the circumstances to safeguard the child’s health, development and welfare.  At the lower level – on occasions of no great emergency, it could be very useful for the carer to have the delegated authority of the person with  full responsibilities and rights.  The authority can be used against third parties or even against the will of the child himself, all in the child’s best interests.  

S3(5) of the act provides a useful device  which can allow carers to discharge parental responsibilities and to discharge parental rights without introducing the disadvantages which the s.4 agreement brings with it. The grantee in a s.3(5) Deed of Arrangement is not given any responsibilities nor rights as such but he does hold the granter’s authority to exercise rights and to discharge responsibilities. The point to remember is that the child’s interests are not usually affected by the absence of s.1 or 2 responsibilities or rights. They are occasionally affected by difficulties in their discharge or exercise

The use of the delegated authority under section 3(5) of the 1995 Act is limited, as is that of the grantor, by the requirement that any major decision relating to that child should be taken in the light of the views of that child if the child is mature enough to express a view and wishes to express one.  This must include the decision to grant the delegated responsibilities and rights in the first place.

The Act is silent on the irrevocability of the delegation.  It is probably wise to provide that it is revocable at the instance of the grantor although I suggest that that is implied by the section insofar as the delegated responsibilities and rights are to be exercisable “on behalf of the grantor”.

The delegation may be made in favour of anyone.  The step-parent is the obvious example but it could also be useful for grandparents, occasional babysitters, a nanny or an au pair .  The deed does not require to be registered, but a registered copy can be the very thing to impress upon some petty jobsworth the significance and weight of the document.  

Consider this common scenario: an illegitimate father wants parental rights to his child. The mother with whom the father has never lived  is not willing to dilute her legal position by signing a s.4 Agreement – she does not trust her ex-boyfriend’s commitment to the child. On the other hand neither really wants the expensive burden of  a s.11 action. If the mother grants a s.3(5) Deed of Arrangement the father can fulfil all the functions of a father during contact. The child’s interests are not prejudiced by any lack of authority in the father and the mother can revoke the Deed if the father does not exercise the delegated power responsibly. The father has been given an acknowledgement of his fatherhood and an opportunity to use it for the child. The mother has retained the authority she began with and does not suffer the potential inconvenience of a s.2(c) challenge at holiday time if the parties should fall out badly.

No style is provided in the 1995 Act.  Quantum valeat a suggested style is set out opposite.  

Remember that the delegation of the power to discharge responsibilities and exercise rights cannot dilute the grantor’s responsibility. The section specifically provides that the parental responsibilities and rights cannot be abdicated.  The suggested style provides for execution not only by the grantor but also, in acceptance, by the grantee.  This has the practical advantage that the grantee’s signature can be checked at any time and it also encourages the grantee to take the whole matter appropriately seriously. If the grantor does not revoke the delegated power, can the grantee or child evacuate it?  The Act is silent on this but the provisions of section 11(2)(e) are surely wide enough for this purpose.

The section 3(5) Deed of Arrangement is a limited but handy tool for the family lawyer. I commend it and its more frequent use.