4.16The definition of “parental rights” in the Law Reform (Parent and Child) (Scotland) Act 1986 also refers to: “any right or authority relating to the welfare or upbringing of a child conferred on a parent by any rule of law”. The Commission argued that it was unsatisfactory to expect non-lawyers to understand a definition of parental rights “which says, in effect, that parental rights are what the common law says they are, without providing further assistance”.525 However, specific statutory rights do not need to be included in a general definition of parental rights.526 The specified parental rights supersede common law rights but not statutory rights.527
Concept and language of custody
4.17The Commission referred to section 8 of the Law Reform (Parent and Child) (Scotland) Act 1986 for its definition of custody:
“the right of a person to have the child living with him or her (or otherwise to regulate the child’s residence) and to control the child’s day to day upbringing. ‘Child’ in relation to custody means a child under the age of 16 years”.528
4.18The Commission referred to:
“comments from well-informed and experienced consultees to the effect that the existing concept of custody was not well understood .... It is by no means clear whether the right to control the child’s day to day upbringing is part of custody or an independent parental right. It seems too that some parents who have obtained an award of sole custody think that that gives them all the parental rights in relation to the child to the complete exclusion of the other parent.”529
Removal of a child from the jurisdiction
4.19Section 2(3) deals with this issue:
“Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in subsection (6) below.”
4.20Subsection (6) refers to a person (whether or not a parent of the child), who for the time being has a right under subsection (a) (entitled to control the child’s residence) or (c) (with whom the child has contact on a regular basis) except that where both parents are such persons, then both their consent is required for removal or retention.
525 Ibid at 2.18.
526 Ibid at 2.19.
527 Section 2(5). Such rights would include the right to nominate a testamentary guardian.
528 As paraphrased in 2.16.
529 Ibid at 2.28.