a child under that age and a person with whom the child is not, or will not be, living.”
(3)A “specific issue order” is: “an order regulating any specific question which has arisen, or may arise, in connection with any of the matters mentioned in paragraph (a) to (d) of subsection (1)....”570
4.68Section 11(4) also refers to an order for interdict, which is somewhat similar to the “prohibited steps order” of section 8 of the English Children Act 1989:
“an interdict prohibiting the taking of any step of a kind specified in the interdict in the fulfilment of parental responsibilities or the exercise of parental rights relating to a child or in the administration of a child’s property.”
4.69Section 11(2) provides that these orders are without prejudice to the generality of the court’s powers to make such orders as it thinks fit. The Commission also recommended that it should be made clear that a court, in an order relating to parental responsibilities or rights or guardianship, may deprive a person of some or all of his parental responsibilities or rights or appoint or remove a guardian. This has been separately provided for by section 11(2) (a) and 11(2)(h) respectively. Norrie suggested that this could be used to remove a parent’s right to enter into legal transactions on behalf of a child but not the right to look after the child.571
4.70The Commission concluded that:
“It is clear that the use of this type of order is not a panacea. We hope that the changes recommended here may contribute in some small measure to a change in perceptions and to an increasing recognition that both parents remain parents, and have a role to play as such, even if their own relationship has unfortunately broken down and their child can no longer live with both of them at the same time.”572
Persons who can apply
4.71The Commission noted that the Law Reform (Parent and Child) (Scotland) Act 1986 already allowed “any person claiming interest” to apply for an order relating to parental rights.573 Section 11(3) allows any person to seek an order unless they are a local authority or a person who has had parental responsibilities and rights removed by an order under Part II574 or by adoption. Norrie explained that “this means that, for example, a parent whose child has been adopted cannot use s 11 to acquire back his or her responsibilities and rights given up or lost at the
570 These include parental responsibilities, rights, guardianship and the administration of a child’s property.
571 Supra at 342.
572 Ibid at 5.6
573Ibid at 5.7
574 This deals with applications by local authorities.