Guardianship Orders and Kinship Care Orders

Each Order bestows Parental Rights and Responsibilities (PRRs) for a child on an adult who had not held these. They are both private law Orders under the Children (Scotland) Act 1995. Any decision by a Court will be based on three broad principles, namely:

(i) The child’s welfare is paramount;
(ii) No Order will be made unless it is better for the child for such an Order to be put in place;
(iii) Have regard to the views of the child, taking account of their age and maturity as far as is practicable. The child must be given an opportunity to indicate whether they wish to express them and given an opportunity to do so.

Kinship Care Order
A person can apply to acquire some or all PRRs under Section 11 of the Act. Not every Order under S 11 is automatically a Kinship Care Order. The Children and Young People (Scotland) Act 2014 S.72(2) defines who is a Kinship Carer as a person who, when the Order was made, was related to the child or had some relationship or connection with the child.

It may be that the Court, in granting some PRRs to the Kinship Carer will deprive another person with PRRs of some of their rights and responsibilities. For example, where a grandparent wants their grandchild to live with them but the child’s father does not, this then the Court can grant to the grandparents the right of determining the child’s residence. This deprives the father of this fundamental right that he would normally have.

Guardianship Order
Under Section 7 of the Act, where a parent dies they can “bequeath” to another adult any PRRs they held at the time of their death. Their intentions will have been set out in their Will or a signed specific agreement. There is no need for the Guardian to apply to the Court for these PRRs but the appointment will not take effect until accepted, either expressly or by that person acting in a way which demonstrates their intention to assume the role of Guardian. Someone may also apply to the Court to become a Guardian.

Where another parent or (anyone else with PRRs) to the child is still alive, their rights will not be altered by the appointment of a Guardian. This means that it is up to all parents and guardians to agree what is best for a child; where this cannot be done, the Court may make a decision about this. Under Section 11 of the 1995 Act, the Court can specify which parental responsibilities are imposed and which parental rights are conferred on the guardian.

Once a person becomes a Guardian under Section 7, this will continue until:
(i) the death of the child or Guardian;
(ii) the child is 18 years of age;
(iii) a Court terminates the Order under S.11 of this Act.

The Children and Young People (Scotland) Act 2014 specifically recognises the role of legal Guardians who care for children and the potential requirement of kinship care assistance for Guardians and those eligible children in their care.

The 2014 Act provides that a person who has been appointed as a Guardian under Section 7 of the 1995 Act in relation to an eligible child is to qualify for kinship care assistance. Kinship care assistance is also to be made available to the eligible child who has a Guardian.