Parental Orders (Human Fertilisation and Embryology) (Scotland) Regulations 1994

JurisdictionUK Non-devolved
CitationSI 1994/2804

1994 No. 2804 (S.141)

HUMAN FERTILISATION AND EMBRYOLOGY

The Parental Orders (Human Fertilisation and Embryology) (Scotland) Regulations 1994

Made 31th October 1994

Coming into force 1st November 1994

The Secretary of State in exercise of the powers conferred upon him by sections 30(9) and 45 of the Human Fertilisation and Embryology Act 19901and of all other powers enabling him in that behalf hereby makes the following Regulations a draft of which has been laid before and approved by resolution of each House of Parliament:

S-1 Citation, commencement and interpretation

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Parental Orders (Human Fertilisation and Embryology) (Scotland) Regulations 1994 and shall come into force on 1st November 1994.

(2) In these Regulations unless the context otherwise requires–

the 1990 Act” means the Human Fertilisation and Embryology Act 1990;

the 1978 Act” means the Adoption (Scotland) Act 19782;

“husband” and “wife” have the same meaning respectively as in section 30 of the 1990 Act;

“parental order” means an order under section 30 of the 1990 Act.

S-2 Application of the Adoption (Scotland) Act 1978

Application of the Adoption (Scotland) Act 1978

2. The provisions of the 1978 Act set out in Schedule 1 to these Regulations shall have effect, with such modifications (if any) as are specified in that Schedule, in relation to parental orders and to applications for such orders.

S-3 References in other enactments

References in other enactments

3. The references to expressions in connection with adoption, in the enactments mentioned in Schedule 2 to these Regulations are to be read, in relation to parental orders and to applications for such orders, in accordance with that Schedule.

Fraser of Carmyllie

Minister of State, Scottish Office

St Andrew’s House,

Edinburgh

31st October 1994

SCHEDULE 1

Regulation 2

APPLICATION OF THE ADOPTION (SCOTLAND) ACT 1978 IN RELATION TO PARENTAL ORDERS AND APPLICATIONS FOR SUCH ORDERS

SCH-1.1

1. General

(1) The following paragraphs set out the provisions of the 1978 Act which have effect, with such modifications (if any) as are specified in those paragraphs, in relation to parental orders and applications for such orders.

(2) Of the modifications referred to in sub-paragraph (1) above, those in paragraphs 2, 3, 5 to 15, 17(2) and 18 are specified by being incorporated in the text of the respective provisions of the 1978 Act set out in those paragraphs.

(3) Any reference in this Schedule to a numbered section or Schedule is, unless otherwise expressly provided, a reference to the section or Schedule bearing that number in the 1978 Act.

SCH-1.2

2. Section 6

Section 6 shall have effect as follows:–

SCH-1.6

Duty to promote welfare of child

6. In reaching any decision relating to an application for a parental order, a court shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.”.

SCH-1.3

3. Section 12

Section 123shall have effect as follows:–

SCH-1.12

Parental orders

12.—(1) Without prejudice to section 30(1) of the 1990 Act (which empowers the court to make an order providing for a child to be treated in law as the child of the parties to a marriage), a parental order vests the parental rights and duties relating to the child in the parties to the marriage, namely the husband and the wife.

(2) The parental order does not affect the parental rights and duties so far as they relate to any period before the making of the order.

(3) The making of a parental order operates to extinguish–

(a)

(a) any parental right or duty relating to the child which, immediately before the making of the order, was vested in a person (not being either the husband or the wife) who was–

(i) the mother or father of the child by virtue of section 27 or 28 of the 1990 Act, or otherwise; or

(ii) a guardian of the child appointed by a deed or by the order of a court;

(b)

(b) any duty owed to or by the child–

(i) to pay or provide aliment in respect of any period occurring after the making of the order;

(ii) to make payment arising out of parental rights and duties in respect of such a period.

(4) Nothing in subsection (3) shall–

(a)

(a) extinguish any duty arising under a deed or agreement which constitutes a trust or which expressly provides that the duty is not to be extinguished by the making of a parental order;

(b)

(b) of itself terminate the appointment or functions of any judicial factor loco tutoris or curator bonis appointed to administer the whole or any part of the child’s estate.

(5) A parental order may contain such terms and conditions as the court thinks fit.”.

SCH-1.4

4. Section 24

Section 24(1) shall have effect with the following substitutions:–

(a) for the words “an adoption order”, there shall be subs tituted the words “a parental order”; and

(b) for the words “a British adoption order” there shall be substituted the words “such an order”.

SCH-1.5

5. Section 26

Section 26 shall have effect as follows:–

SCH-1.26

Care of child on refusal of parental order

26.—(1) Where on an application for a parental order the court refuses to make an order then–

(a)

(a) if it appears to the court that there are exceptional circumstances making it desirable that the child should be under the supervision of an independent person, the court may order that the child shall be under the supervision of a specified local authority;

(b)

(b) if it appears to the court that there are exceptional circumstances making it impracticable or undesirable for the child to be entrusted either to the person who is the mother or the father of the child by virtue of section 27 or 28 of the 1990 Act, or otherwise, or to any other individual, the court may by order commit the child to the care of a specified local authority.

(2) Where the court makes an order under subsection (1)(b) the order may require the person who is either the mother or the father of the child by virtue of section 27 or 28 of the 1990 Act, or otherwise, to pay to the local authority, while it has the care of the child, such weekly or other periodical sum towards the aliment of the child as the court thinks reasonable.

(3) Subsections (2), (4) and (5) of section 11 of the Guardianship Act 19734(jurisdiction and orders relating to care and custody of children) apply in relation to an order under this section as they apply in relation to an order under that section.”.

SCH-1.6

6. Section 27

Section 27(1)5shall have effect as follows:–

SCH-1.27

Restrictions on removal where application pending

27.—(1) Where an application for a parental order is pending, the person who is either the mother or the father of the child by virtue of section 27 or 28 of the 1990 Act, or otherwise, or any guardian of the child, is not entitled, against the will of the person with whom the child has his home, to remove the child from the care and possession of that person except with the leave of the court.”.

SCH-1.7

7. Section 29

Section 296shall have effect as follows:–

SCH-1.29

Return of child taken away in breach of section 27

29.—(1) An authorised court may on the application of a person from whose care and possession a child has been removed in breach of any of the provisions specified in subsection (3) of this section order the person who has so removed the child to return the child to the applicant.

(2) An authorised court may, on the application of a person who has reasonable grounds for believing that another person is intending to remove the child from the care and possession of the applicant in breach of any of the provisions specified in subsection (3) of this section by order direct that other person not to remove the child from the care and possession of that applicant in breach of those provisions.

(3) The provisions specified in this subsection are–

(a)

(a) section 27;

(b)

(b) section 27 of the Adoption Act 19767as modified by the Parental Orders (Human Fertilisation and Embryology) Regulations 19948; and

(c)

(c) Article 28 of the Adoption (Northern Ireland) Order 19879, as modified by the Parental Orders (Human Fertilisation and Embryology) Regulations 1994.”.

SCH-1.8

8. Section 39

Section 3910shall have effect as follows:–

SCH-1.39

Status conferred by parental order

39.—(1) Without prejudice to section 30(1) of the 1990 Act (which empowers the court to make an order providing for a child to be treated in law as the child of the parties to a marriage), the child who is the subject of the parental order shall be treated in law–

(a)

(a) as if he had been born as the child of the parties to that marriage; and

(b)

(b) as if he were not the child of any person other than the parties to that marriage, namely the husband and wife.

(2) This section has effect from the date on which the court makes the parental order.

(3) Subject to the provisions of this Part, this section applies for the construction of enactments or instruments passed or made before or after the date of coming into force of the 1994 Regulations unless the context otherwise requires.”.

SCH-1.9

9. Section 41

Section 41(1)11and (2)12shall have effect with the substitution for subsection (1) of the following:–

“Miscellaneous(1) Notwithstanding the effect of the making of a parental order but without prejudice to section 39(1)(a), the child who is the subject of that parental order shall be treated for the purposes of determining the forbidden degrees of consanguinity and affinity in respect of the law relating to marriage and in respect of the crime of incest, as if–(a) he were the child of the parties to the marriage who applied for the parental order; and(b) he were also the child of any other...

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