Blank Space "How to Guide" for Scotland
What to do if a parent dies before their child’s birth in Scotland
Please note: This How to Guide applies to the situation in Scotland only. There is separate guidance for parents based in England and Wales here
The registration of a child’s birth is not only a legal requirement in Scotland – it is also an important step in ensuring that the child’s legal identity and family relationships are formally recognised. But what happens in Scotland if a child’s father dies before the birth is registered?
The answer depends on whether the parents were married and whether legal steps are taken to prove paternity.
This guide explains the law in Scotland, the registration process and the options available when the father was unmarried and died before the birth was registered. It is intended to give a clear, structured understanding of what can be a complex and emotional legal issue.
The legal duty to register a birth
Under Section 14 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965, a child’s birth must be registered within 21 days. The registration is done by notifying the district registrar for the area where the child was born and providing all the required details.
The rules on who can register the birth – and whether the father’s details can be recorded – differ for married and unmarried parents.
If the parents were married
If the parents were married at the time of the child’s conception or birth:
- Either parent may register the birth.
- If the father dies before registration, his name should still be recorded on the birth certificate as the child’s father.
The law assumes paternity in the case of marriage, so no additional legal proof is required.
If the parents were unmarried
For unmarried parents, the situation is more complex.
Under Section 18 of the 1965 Act, the father’s name can only be added to the birth certificate in one of three ways:
1. Joint registration – the mother and the person acknowledging himself to be the father attend together (or otherwise both provide signed confirmation).
2. Registration at the mother’s request – supported by:
- A declaration from the mother stating that the man is the father; and
- A statutory declaration from the father acknowledging paternity; or
- A court decree declaring paternity.
3.Registration at the father’s request – supported by:
- A declaration from the father acknowledging paternity; and
- A statutory declaration from the mother confirming this.
Key complication when the father dies before birth:
National Records of Scotland (NRS) has confirmed that the required statutory declaration from the father cannot be completed before the child is born – even if the father is terminally ill. This means that, if an unmarried father dies before the child’s birth, his name cannot be added at the initial registration unless there is already a court decree declaring him to be the father.
Proving paternity after the father’s death
If the mother wishes the father’s name to be included on the child’s birth certificate, she must raise an action for declarator of parentage in court.
1. If decree is obtained before registration of birth
- The court’s declarator of parentage can be presented at the time of registration, allowing the father’s name to be added immediately.
- In practice, this is rare – 21 days is a short timeframe for court proceedings.
2. If decree is obtained after registration
- The birth can be re-registered to include the father’s details.
- The mother must apply to National Records of Scotland using Form RR1 and act as the informant or provide written consent.
- More details on re-registration are available at the NRS’s “Changing or correcting a register entry” guidance (https://www.nrscotland.gov.uk/registration/changing-or-correcting-a-register-entry/#re-registration)
If the mother does not apply
If the mother neither raises a declarator of parentage nor consents to re-registration, other parties with a legally enforceable interest may be able to apply to the court.
There is little case law in Scotland defining exactly who has “title to sue” for declarator in these circumstances, but those who could arguably have a legally enforceable interest include:
- The child – once of sufficient age and maturity to instruct legal proceedings.
- Potentially the father’s executor – for example:
- If the father died with a will in place, his executor nominate (the executor appointed in the father’s will) may be able to raise an action to satisfy their duty to establish if a putative child is a child of the deceased to clarify the position regarding legal rights claims and where, for example, the father has bequeathed his estate to a surviving child.
- If the father dies without a will (i.e. intestate) and the court appointed executor (the executor dative) requires to identify whether a putative child has a right to inherit or to claim legal rights, they too may be able to raise an action.
If such a declarator is granted:
- The court will notify NRS.
- An annotation will be added to the birth register entry, e.g.:
“Decree of parentage in favour of [father’s name], 1 September 2025, Aberdeen Sheriff Court.” - However: the father’s name will not appear in the “father/other parent” section of the birth certificate unless the mother agrees to apply for re-registration of the child’s birth.
How to obtain a declarator of parentage
The legal basis is Section 7 of the Law Reform (Parent and Child) (Scotland) Act 1986.
An action can be raised in:
- The Court of Session, (a) where the father is domiciled in Scotland on the date when the action is brought, (b) was habitually resident in Scotland for not less than one year immediately preceding that date; or (c) died before that date and either – (i) was at the date of death domiciled in Scotland; or (ii) had been habitually resident in Scotland for not less than one year immediately preceding the date of death; or
- The sheriff court, if the child was born in the sheriffdom or an action could have been brought in the Court of Session and the alleged or presumed parent or the child was habitually resident in the sheriffdom on the date when the action is brought or on the date of his death.
In most circumstances, the sheriff court is the more cost-effective route.
The process in the sheriff court:
- Initial writ lodged with the sheriff court (the document setting out that declarator of parentage is sought, the facts supporting this and a statement confirming the law).
- Once accepted (“warranted”), it is served on the relevant parties – usually the father’s next-of-kin, if he has died.
- Parties have 21 days to state if they intend to defend the action.
- If defended: It the action is defended (that is to say that the action is contested because an opponent in the case states that they do not agree with the other being sought or they wish to seek an order of their own in that action), the case proceeds to proof (a court hearing with evidence). Defences will be lodged by those defending the action and there will be a court process, which culminates in evidence being led, after which the court would consider whether or not to grant declarator of parentage.
- If undefended: If the action is not contested, affidavits (sworn statements) would be lodged and submitted by the person applying for the order with a ‘minute for decree’ (a document asking the court to grant the declarator of parentage sought).
Evidence:
The pursuer (the person raising the action) must establish, on the balance of probabilities, that there exists a genetic link between the alleged parent and child. DNA evidence can be very helpful, although it is not strictly necessary (particularly where this may not be available, which may apply in the case of a deceased father). Other evidence may include photographs, correspondence, witness evidence and any other material showing the nature of the relationship between the mother and putative father and indicative thar the man in question is the child’s father.
The court, in an action for declarator of parentage, has the power to order DNA testing of a child. A child can provide consent to DNA testing, provided that they are capable of understanding the nature and consequences of consenting to the medical procedure. If a child is not capable of providing consent, their parent (in this case the child’s mother) ought to do so. The court cannot compel the medical procedure to take place. Instead, the court can draw adverse inferences from a refusal to complete testing.
testing.
Timescales and costs
Timescales
- Undefended: typically 8-12 weeks.
- Defended: can take many months, depending on the court’s availability for proof dates (a proof is a type of court hearing where evidence is heard).
Court fees
Current (2025) sheriff court fees include:
- Lodging initial writ: £171
- Lodging affidavits/minute for decree: £80
In defended cases, these costs will also include:
- Record fee (for lodging a record, which is a legal document setting out the pleadings of all parties): £153
- Fixing proof: £66
- Proof hearing (per day): £282
- Motions: £65
These fees are reviewed annually. Fee exemption may be available in some cases.
Legal costs
A party wishing to raise a court action does not need to instruct a solicitor. However, court procedures can be complex, with strict rules and deadlines. Whilst legal advice is not essential, it may assist a party in understanding the process and presenting their case effectively.
In addition to any court fees incurred, the person raising the action will be required to meet their legal fees, if instructing a solicitor, unless they are in receipt of civil legal aid. Fees vary depending on the firm instructed, but should be confirmed in a letter of engagement/terms of business letter.
Where an action is opposed, it may be possible for the successful party to seek an award of expenses against the opponent, although this is always at the discretion of the court.
About this How to Guide for Scotland
This document was prepared with the assistance of Garry Sturrock, Senior Associate at Brodies LLP. Garry is accredited by the Law Society of Scotland as a specialist in family law and, together with the wider Brodies team, has extensive experience in advising on sensitive family matters.
He can assist parents and relatives seeking posthumous recognition of an unmarried father in Scottish cases. Garry can be contacted at garry.sturrock@brodies.com
Disclaimer: Please note that this document provides guidance only and does not constitute legal advice. If you have any concerns or questions about your specific case, we would recommend consulting a family law solicitor. WAY Widowed and Young is not able to provide advice on any individual circumstances.