Your Legal Rights and Responsibilities

A child is born

Mother has full parental responsibilities and rights

Father has responsibilities and rights if:

  1. He is married to the mother when or since the child was conceived
  2. He is named on the child’s birth certificate (from 4 May 2006)
  3. Mother can grant rights to father through Parental Responsibilities and Parental Rights Agreement
  4. Father can apply to courts to be granted parental responsibilities and rights
  • Both have a legal responsibility to keep the child safe and promote their health, development and welfare through direction and guidance
  • They act as the child’s legal representative.

Responsibilities of Carer for a “looked after” child

If you are caring for a child through an agreement with the Local Authority:

  • The parents may retain full parental responsibilities and rights for the child
  • The Local Authority has a number of duties towards the child
  • You have a duty to care for the child to safeguard and promote the health and development of the child’s welfare through direction and guidance
  • You must follow the Child’s plan and ensure that all their needs are met.

If and when a child is ill and may need to go into hospital, carers need to be aware of the healthcare rights, needs and issues relating to the child in their care. Please visit Children’s Health Scotland for further information.

Prior to being a carer

Do you feel that the child is in danger or at risk?

Is the child in immediate danger, i.e. the child is left unattended?

If you have serious concerns contact the Police or social services about your concerns immediately.

You should not remove the child from the parent’s home without consent. If the child however is in immediate danger please dial 999 to contact the Police.

How a child may be placed with you

  • S25 Children (Scotland) Act 1995 – a child is accommodated by the Local Authority.A Local Authority shall provide accommodation for any child who having been found in their area appears to need help because:
    • The child was orphaned and no one had parental responsibility for them
    • The child is lost or abandoned
    • The child’s carers have been prevented from providing suitable accommodation or care for them
    • It will safeguard and/or promote the child’s welfare

    They must only do this with the agreement of the parents unless they cannot be found.

  • S83 of the Children’s Hearing (Scotland) Act 2011 – Compulsory Supervision OrderA child is referred to a Children’s Hearing when compulsory measures of supervision may be necessary. This can be for many reasons – for example, the child is being neglected or harmed, not being looked after well, not going to school or committing offences.A Children’s Hearing can place the child under a Compulsory Supervision Order with a condition that he/she resides with kinship carers. A Compulsory Supervision Order lasts for one year, after which it must be reviewed by a Children’s Hearing. Compulsory Supervision Orders can also be reviewed by a Children’s Hearing during the year if requested by a parent.
  • Change to S37 Children’s Hearing (Scotland) Act 2011 – Child Protection Order – Emergency PlacementThese are short term orders lasting up to 8 days. Then a Children’s Hearing will consider the child’s case. A Sheriff can make a Child Protection Order where he/she feels that the child is suffering or is at risk of suffering significant harm.
    The Sheriff can authorise:

    • removal of the child from their home
    • placement of the child in a place of safety
    • consider and specify what contact arrangements between the child and parent should take place

    The Local Authority shall be responsible for the placement of that child.

  • Transfers/Cross Boundaries
    This is a complicated process where the child is “looked after” by a Local Authority which is different to the one in which you live. This may also include a child moving from England to Scotland which can involve a range of different practices and terminology which can be very confusing. Due to this there can then be issues around support and financial assistance between the authorities, which may impact on you. At some point the case should be transferred to the Local Authority in which you live.If you are in this situation please speak to your Local Authority or alternatively seek legal advice.All “looked after” children subject to a Compulsory Supervision Order will have an “Implementation Authority” nominated by the Children’s Hearing.
  • Continuing Care
    S26A Children (Scotland) Act 1995 – Continuing Care as inserted by Section 67(1) of the Children and Young People (Scotland) Act 2014A Local Authority shall provide the same accommodation and support that was being provided prior to the young person ceasing to be “looked after” beyond their 16th birthday and born after 1 April 1999, in kinship, residential and foster care. A young person can choose to remain in Continuing Care up to the age of 21Kinship carers have a responsibility to provide a young person with this continuing support until they reach the age of 21, or until the young person is prepared to move on. However, this might not always be suitable for the carers so kinship carers also have a right under legislation to decide not to provide this.
  • Permanence Orders
    S80 Adoption and Children (Scotland) Act 2007 – A local authority can apply to the Courts for a Permanence Order in respect of a child who can no longer live with their parents. A Permanence Order may remove some or all parental responsibilities and rights and place these with the local authority. All Permanence Orders will contain provisions which regulate the child’s residence as well as the responsibility to provide, in a manner appropriate to the stage of development of the child, guidance to the child.
For more help with your Legal Rights and Responsibilities visit www.clanchildlaw.org