Parental responsibility issues in Scotland
In order to change the name of a child less than 16 years of age consent must be given by all those with parental responsibility. Only somebody who has parental responsibility for a child can change their name by Deed Poll.
If the child is over 16 years of age they must apply for their own Adult Deed Poll for which parental consent is not required.
- What is parental responsibility?
- Who has parental responsibility?
- Fathers without parental responsibility
- Absent fathers with parental responsibility
- When do carers have parental responsibility?
Under the Children (Scotland) Act parental responsibility is defined as the responsibility to:
- Safeguard and promote the child's health, development and welfare
- Provide direction and guidance
- Maintain personal relations and direct contact with the child on a regular basis, if the child is not living with the parent.
- Act as the child's legal representative
Therefore, those with parental responsibility have a duty to care for and protect their child and also have the right to make decisions regarding that child's future.
To change a child's name, those with parental responsibility must consent to the name change. In Scotland, the part of parental responsibilities in relation to the giving of "guidance" endures until 18 years of age. The other rights are lost when the child reaches 16 years of age.
In any part of the United Kingdom, a mother automatically has parental responsibility for her child. However, whether or not the father has parental responsibility is a more complex matter, which differs from place to place. Since all those holding parental responsibility must agree to a change of name of a child, it is essential to know exactly who is and who is not holding parental responsibility.
If a father holding parental responsibility refuses to give his consent to change his child's name, the only thing a mother can do is to apply to the courts for leave (permission) to change the child's name. The courts will then decide if it is in the best interests of the child for his/her name to be changed. With older children their feelings can be an important influence on the courts decision as to whether or not to grant permission for a change of name.
To determine who holds parental responsibility in Scotland View Our Flowchart.
The mother of the child automatically holds parental responsibility.
The father only holds parental responsibility if:
- The parents were married when the child was conceived or at any time afterwards.
- For births registered since 4th May 2006, unmarried fathers automatically gain parental responsibility if their details are entered on the child's birth certificate.
Step fathers can acquire parental responsibility in the following ways:
- Being granted a Custody or Residence Order by a court.
- Being appointed a Guardian by a court.
- Entering into a Parental Responsibility Agreement with the child's natural parents.
Adoptive parents automatically gain parental responsibility when they adopt their child.
At the following times, parental responsibility is lost:
- When a child reaches 16 years of age (in Scotland).
- A child is adopted - parental responsibility is passed to the adoptive parents.
- It is brought to an end by the court, either by application of a person having it, or by the child.
- A person holding parental responsibility passes away.
It is also possible for parental responsibility to be limited by Care Orders, Contact Orders or Prohibited Steps Orders.
If the father doesn't have parental responsibility, it is still a good idea to try to get his consent before changing the child's name as a surname can be an important link for a child.
In some cases, the courts have allowed a father without parental responsibility who is in frequent contact with his child to reverse a change of name. The courts will consider whether it is in the child's interests to 'disassociate' (separate) them from their birth name. For more information please read Obtaining a Court Order.
Changing the name of a child without first gaining the consent of a father who holds parental responsibility can only be done through a court order. If the father has been absent for several years a mother does not usually have any difficulty obtaining a court order giving permission to change her child's name.
Once a court order has been granted it can be used, along with a Deed Poll document, to update a child's records to show their new name.
Depending on the circumstances, friends or family members appointed as foster carers will sometimes hold partial parental responsibility for the child.
If a carer shares parental responsibility with the child's parents they can change the child's name provided the parents agree. If the parents disagree to the name change only the courts can decide whether the child's name can be changed. In these situations the children's feelings towards the name change are an important factor for the courts in deciding whether to grant permission for a change of name.
Shown below are several possible caring arrangements along with who is likely to hold parental responsibility in each case.
- Under a care order, the child is looked after by the Local Authority and has been placed with a friend or family member who has been approved as a foster carer.
- The child's parents and the Local Authority share parental responsibility for the child who may only be removed from the carer through the local authority.
- In this case the foster parents will not have parental responsibility and therefore can not change the child's name.
- Under a voluntary agreement with the child's parents, the child is looked after by the Local Authority and placed with a friend or family member who has been approved as a foster carer.
- The parents have parental responsibility for the child who may only be removed from the carer either by the parents or through the local authority.
- In this case the foster carers will not have parental responsibility and therefore can not arrange a name change for the child.
- With a residence order, the child is cared for by a friend or family member.
- Here, parental responsibility is shared between the parents of the child, and the person in whose favour the residence order was made.
- In this situation both the carer and parents would have to consent to change the child's name.
- If both parties do not consent to the change of name only the courts can decide whether to grant a change of name.
- Without a court order, the child cannot be removed from the carer by the parents.
- With a special guardianship order, the child is cared for by a friend or family member.
- Parental responsibility is shared between the parents of the child, and the person in whose favour the special guardianship order was made.
- The special guardian may exercise day to day parental responsibility rights to the exclusion of all others holding parental responsibility (except for any other special guardian).
- The special guardian can apply to the courts to grant a change of name for the child if the parents do not consent.
- Under a Deed of Appointment, the child is cared for by a friend or family member who is appointed as a guardian, upon the death of a parent as a part of the parent's will.
- If the carer has been appointed by a parent who has sole parental responsibility, the carer will have full parental responsibility on the death of the parent (or otherwise upon the death of everyone with parental responsibility).
- In this situation the carer can change the child's name.
- The child is cared for by a carer who has no legal order, and has not been appointed as a guardian.
- If this sort of private agreement has been made, parental responsibility remains with the child's parents and not the carer.
- The child's parents may remove the child as and when they wish.
- The carer may not change the child's name
It is important to note that when parental responsibility is shared and not everyone with responsibility consents to the child's name change only a court can decide whether to grant a change of name.
To change your name...
- Fill in our online application form
- Receive your Deed Poll in the post
- Sign and date your Deed Poll
- Update records into your new name
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