Parental Responsibility Issues in Scotland

To change the name of a child under 16 years old in Scotland, 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. Parental Responsibility does not apply.

What is Parental Responsibility?

Who Has Parental Responsibility?

Fathers Without Parental Responsibility

Absent Fathers With Parental Responsibility

When Do Carers Have Parental Responsibility?

What is Parental Responsibility?    

Under the Children Act in Scotland, the definition of parental responsibility is:

• 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. This is for instances 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. They 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 end when the child reaches 16 years of age.

Who Has It?

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 everyone holding parental responsibility must agree to a child’s name change, it’s essential to know who holds parental responsibility.

If a father holding parental responsibility refuses to consent to change his child’s name, a mother can apply to the courts for leave (permission) to change the child’s name. The courts decide if a name change is in the best interests of the child. With older children, their feelings are an important influence on the courts decision to grant permission for a name change.

The mother of the child automatically holds parental responsibility.

The father only holds parental responsibility in Scotland if:

• The parents were married when the child was conceived or at any time afterwards.
• For births registered after 4^th May 2006, unmarried fathers on the child’s birth certificate automatically gain parental responsibility. 

Step fathers can acquire parental responsibility in the following ways:

• Receiving a Custody or Residence Order by a court.
• Receiving Guardianship 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.

Loss of Parental Responsibility

Parental responsibility is lost:

• When a child reaches 16 years of age (in Scotland).
• Parental responsibility passes to the adoptive parents when an adoption is complete.
• 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.

Care Orders, Contact Orders, or Prohibited Steps Orders can limit Parental responsibility.

Fathers Without Parental Responsibility   

If the father doesn’t have parental responsibility, still try to get his consent before changing the child’s name. This is because 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.

Absent Fathers  

Changing the name of a child without consent of a father with parental responsibility is only done through court order. If the father has been absent for several years, a mother doesn’t usually have any difficulty obtaining a court order.

Once a court order is given, use it with a Deed Poll to update the child’s records to their new name.

When Do Carers Have Parental Responsibility?

Depending on the circumstances, friends or family members appointed as foster carers may hold partial parental responsibility for a 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. The courts will consider this when deciding 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.

1. Under a care order, the Local Authority looks after the child. The child stays with a friend or family member with foster carer approval.
   • The child’s parents and the Local Authority share parental responsibility for the child. Only the Local Authority can remove the child from the carer.
   • In this case the foster parents will not have parental responsibility and therefore can not change the child’s name.
2. Under a voluntary agreement with the child’s parents, the Local Authority looks after the child. However, the child stays with a friend or family member who is an approved foster carer.
   • The parents have parental responsibility for the child. The child may only be removed from the carer by the parents or through the local authority.
   • In this case the foster carers will not have parental responsibility. Therefore, they can not arrange a name change for the child.
3. With a residence order, a friend or family member cares for a child.
   • Here, the parents of the child and the person in whose favour the residence order is for share parental responsibility.
   • In this situation both the carer and parents would have to consent to change the child’s name.
   • If both parties don’t consent to the name change only the courts can decide whether to grant a name change.
   • The parents can only remove the child from the carer with a court order.
4. With a special guardianship order, a friend or family member cares for the child.
   • 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.
5. 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 with sole parental responsibility, the carer has 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.
6. The child has a carer with no legal order who does not hold guardianship.
   • Under this sort of private agreement, 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 in Scotland when parental responsibility is shared, only a court can decide whether to grant a child’s change of name if there is not consensus on the name change.