Child Disability Payment decision making guide

Who gains parental rights and responsibilities for a child

A child’s mother gains parental rights and responsibilities when the child is born (Children (Scotland) Act 1995, Section 3(1)(a)).

A child’s father gains parental rights and responsibilities when the child is born, if he was married to the child’s mother when the child was conceived or after. It does not matter if the marital relationship between the mother and father has now ended.

Fathers can alternatively gain parental rights and responsibilities by either of the following methods:

  • being registered as the child’s father on the child’s birth certificate on or after 4 May 2006
  • both mother and father agreeing that the father is to have parental rights and responsibilities and the mother enters into a formal agreement with the father called a Parental Responsibilities and Parental Rights Agreement
  • getting an order from the court giving him parental rights and responsibilities.

A women can become a child’s second female parent if they :

  • are in a civil partnership or in a same-sex marriage with a woman at the time they have the egg donation, embryo transfer or donor insemination treatment which produces a child,
  • are the partner of a woman undergoing egg donation, embryo transfer or donor insemination treatment, and the mother has agreed that her partner should be the child’s second parent and her partner is registered as the child’s parent,
  • apply to the court for an order giving the second female parental rights and responsibilities.

Where a couple used surrogacy they can apply for a court order treating them as the child’s parents after the child is born. The woman who bore the child remains the mother until the court order is granted. This is only possible where the gametes of at least one of the couple have been used.

Other people with an interest in the welfare of the child such as:

  • grandparents
  • step parents
  • aunts
  • uncles

can apply to the Court for an order giving them one or all parental rights and responsibilities. The Court will make the decision about who should have parental rights and responsibilities based on what is in the child’s best interests.

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