Kate Bradbury: Being a parent carries legal responsibilities

Meghan Markle's father was conspicuous by his absence following the birth of his grandson. Picture: Chris Allerton

Prince Harry and his wife Meghan are accustomed to the duties that go with being members of the Royal Family, but last week they took on responsibilities of a new kind when they became parents to Archie Harrison Mountbatten-Windsor. Being a parent is not just a title; it carries legal responsibilities for the child too – known in England and Wales as “Parental Responsibility” and in Scotland as “Parental Responsibilities and Parental Rights” (PRRs). So what do these entail?

By virtue of the Children (Scotland) Act 1995, a parent has a number of responsibilities: to safeguard and promote the child’s health, development and welfare, to provide direction and guidance, to maintain personal relations and direct contact with the child on a regular basis and to act as the child’s legal representative.

In order to fulfil these responsibilities, parents have corresponding rights, including the right to regulate the child’s place of residence, to control, direct and guide his or her upbringing, to maintain personal relations and to act as the child’s legal representative.

Kate Bradbury is a solicitor in Brodies LLPs personal and family team

In the run-up to the birth of Archie, Harry and Meghan made it very clear that they want to do things their own way. Provided the decisions they make are in his best interests, how they choose to exercise their parental responsibilities is down to them.

In Scotland, PRRs apply until a child is 16 years of age. The only exception to this age limit is the responsibility to provide guidance to the child, which continues until the child turns 18.

The question then arises of who has PRRs? It is often assumed they are automatically acquired by the biological parents, but that is not always the case. While a child’s mother automatically acquires PRRs as soon as her child is born, the conditions differ for the child’s father, who only acquires PRRs if he:  l is, or was, married to the mother at the date of the child’s conception or at any time after; or l is registered as the child’s father in the UK after 4 May 2006. If he is named on the birth certificate, marriage to the child’s mother is irrelevant.

However, PRRs can extend to other individuals beyond ‘mum’ and ‘dad’. The general rule is that anyone who has a genetic or emotional tie and can “claim an interest” in the child can apply for PRRs – for example, a grandparent.

In the case of Harry and Meghan, it has been noted that one person who is missing from the recently published family photographs is Thomas Markle, Meghan’s father. In Scotland, grandparents do not currently have automatic legal rights in relation to their grandchildren. A consultation was undertaken in May 2018 by the Scottish Government with a view to reviewing part of the Children (Scotland) Act 1995 to “ensure the interests of children and their need to form and maintain relationships with key adults in their lives – parents, step-parents, grandparents and other family members” and to decide, among other matters, whether there should be a presumption within the Act that children should have contact with their grandparents.

A number of responses were submitted and we await their recommendation. Whatever the outcome may be, it should remain the position that when making any decisions about a child, his or her welfare is the paramount consideration.

It remains to be seen whether Thomas Markle will have a role in his grandson’s life and whether he will take on any responsibilities in Archie’s upbringing. What is clear, however, is that for families in Scotland there are a variety of ways in which PRRs can be obtained, either by fathers or extended family members – but independent legal advice should be sought at the earliest opportunity.

Kate Bradbury is a solicitor in Brodies LLP’s personal and family team