Recently, MSPs unanimously passed the Children (Scotland) Bill. The bill, which aims to encourage the expression and inclusion of children in court and children’s hearings, passed following wide consultation and has been welcomed as a “fundamental commitment to children”. The new Children (Scotland) Act 2020 will revolutionise the practices of Scots Family Lawyers and will impact children and families across Scotland.
The Act makes a lot of changes; at the forefront is the drive to more closely align Scots Law with The United Nations Convention on the Rights of the Child. Putting international instruments to the side for a moment, what will the 2020 Act mean for children in Scotland?
The 2020 Act:
- Replaces the current presumption that only children aged 12 and over are mature enough to have their views heard in courts and children’s hearings;
- Places an obligation on the courts to explain their decisions to children in a way they will understand;
- Abandons the outdated Form F9 in favour of free expression for children in Courts; and
- Places a duty on Local Authorities to consider how to maintain contact between siblings should they be placed outside the family home.
The current presumption in the Children (Scotland) 1995 Act, that only children aged 12 and over are mature enough to give their views will be replaced with the presumption that all children are capable of giving their views, except in exceptional circumstances. Judges will retain a sufficient degree of discretion in this regard, having to consider the views of the child; taking into account their age and maturity.
The 2020 Act also abandons the one-size fits all approach of gathering the views of children via the completion of the court-approved Form F9, which children can do so with the help of a parent, teacher or other trusted adult. Instead, children will be invited to give their views in whichever manner the child prefers, this could be via drawings, video presentation, letter writing or play therapy - the possibilities are endless. Courts have been encouraged to get creative with the means by which children communicate their views. Numerous children’s charities have applauded this change; noting the courts will now have the opportunity to gain a more honest and nuanced view and in-turn can make a better-informed decision.
Once the court has made a decision in relation to contact, residence or other section 11 orders, it will now be obliged to communicate its decision to the child in a way they can understand. The Judge may explain the decision face-to-face, electronically, in writing or they may also request that Child Welfare Reporter to explain the decision. When this was initially proposed, it received backlash from Court of Session Judges who suggested that it would be unworkable due to the volume of orders made; they also cited that the primary responsibility to explain decisions to the child should remain with parents. It has been argued, however, that the outcome of court proceedings often leave children feeling anxious about whether they have said the right thing or how their views may impact a parent. The new legislation intends to give the child the opportunity to hear why a certain decision has been made from a neutral source, in language the child can understand.
Section 13 of the Children (Scotland) Act places a legal obligation on Local Authorities to “promote relations with siblings where appropriate”. This means that Local Authorities will be required to support and facilitate sibling relationships where children are not able to live together. Children’s hearings and Judges will also have a duty to consider contact with siblings and other relevant persons who are not living with the child, when making, changing or continuing compulsory supervision orders. Judges will be required to consider the impact of an order on i) the child’s parents in bringing up the child; and ii) the child’s important relationships with other people. In addition to this, section 25 of the act grants eligible siblings and relatives the right to participate in a children’s hearing when there was previously no such right. This is an important change which aims to give grandparents and siblings more protection.
The Children (Scotland) Act 2020 aims to put children and children’s views at the heart of the decision-making process; to ensure the fair treatment of children and families by Scotland’s civil courts. The 2020 Act gives children in Scotland a level of certainty that their views, and the views of important people in their lives, will be heard and, in-turn valued by the civil courts.
If you require advice on any of the issues mentioned in this article, please contact a member of the Thorntons Family Law team.