4.26However, sections 3 and 4 of the Children (Scotland) Act 1995 draw a distinction between unmarried and married fathers, similar to the English Children Act 1989. An unmarried father does not have parental responsibility unless provided by agreement between the parents531 or by court order. Norrie criticised these provisions: “One could ... accept that a sinful (i.e. unmarried) father ought to be denied rights because of his sin, but it is surely illogical to argue that a sinful father should ... be absolved of his responsibilities”.532 His response on the proposed agreements is that these agreements have not proved popular in England.
4.27Section 3(5) of the Children Act 1989 provides that:
“A person who:
(a) does not have parental responsibility for a particular child; but
(b) has care of the child,
may (subject to the provisions of the Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.”
4.28The Commission considered that such a provision should be included in the Scottish legislation, and gave as an example of its possible application the situation of a young child being sent to stay with relatives or friends for a holiday. A provision such as section 3(5) would ensure that the adult with temporary care of the child could arrange for medical treatment if the child had an accident. It would be useful for step-parents and foster parents. The Commission also gave the example of a step-parent or foster parent with actual care or control of a five-year old child who should be able to give consent to any medical treatment or procedure (such as an immunisation at school) which is in the child’s interests and to which the child is not capable of consenting on his or her own behalf.
4.29However, concern was expressed by consultees as to whether the English provision would be clear enough to cover consent to medical treatment. The Commission recommended that this should be clarified in the legislation. However, the Commission did not recommend the inclusion of teachers in a school. “A teacher should not, for example, be able to give a blanket consent to the immunisation of a whole class of school children”.533
4.30Section 5 provides:
531 Section 4.
532 “Parental Responsibilities and Parental Rights,” Journal of the Law Society of Scotland, September 1995, 340, 341.
533 Ibid at 2.59.