4.72Section 11(5) clarifies that the child concerned may apply for an order relating to parental responsibilities or rights, guardianship or the administration of his or her property.
Avoidance of unnecessary orders
4.73The concern about unnecessary orders relating to parental rights is also recognised even though Scotland has already a provision, by section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986, providing that a court “shall not make any order relating to parental rights unless it is satisfied that to do so will be in the interests of the child”. The Commission felt that this should be strengthened. This is because of the “new emphasis on orders which, so far as possible, do not deprive either parent of any parental rights”.576 Section 11(7)(a) provides that the court:
“shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order577 unless it considers that it would be better for the child that the order be made than that none should be made at all”.
4.74Norrie explained the importance of this shift in thinking thus-
“a divorcing parent who wants to be the child’s sole carer must seek to show why the other parent should have responsibilities and rights taken away rather than showing why he or she, the applicant, should be allowed to be sole carer”.
4.75 Section 11(8) puts a duty on the court, where there are orders relating to the administration of a child’s property to qualify the principle of subsection (7) by protecting the position of third parties who have acquired any property of the child, or any right or interest in relation to it, in good faith and for value.578
Checklist of factors
4.76The English Children Act 1989 does provide a checklist in section 1(3) and (4). The Commission noted a divergence of views expressed to them on the issue of a statutory checklist:
575 Supra at 342.
576 Ibid at 5.17.
577 Relating to parental responsibilities, parental rights, guardianship or the administration of a child’s property, subject to section 14 (1) and (2) of the Act. This deals with the jurisdiction of the Act.
578 This is implementing 5.18.