Posted on Jan 31, 2020 in Family Law by Jennifer Broatch
Important changes in the world of child law are afoot in Scotland. The Children (Scotland) Bill was introduced to the Scottish Parliament in 2019 and is currently in the early stages of the law-making process. Once its passage is complete, it will be known as the Children (Scotland) Act 2020.
What does the Bill aim to do?
Stated aims are improving the experience of children involved in family court cases and ensuring their voices are heard. Offering greater protection for victims of domestic abuse is another key aim, as well as further compliance with the United Nations Convention Rights of the Child (UNCRC) in family court cases.
However, the Bill has raised a number of real concerns from esteemed bodies and individuals such as the Faculty of Advocates and the Court of Session family law judges.
In this blog we highlight some of the key proposals made by the Bill and consider how these have been received.
What are the key changes to the law relating to children in Scotland?
- Children’s participation in court
Ensuring that children’s views are heard in contact and residence cases is one of the key objectives of the Bill. Generally, we would comment that the views of a child being heard and appropriate measures being explored to ensure that this happens is an important concept which should be supported.
There appears to be the removal of the current presumption that a child of 12 years or older is of sufficient age and maturity to form a view. Other wording in the Bill makes it mandatory for the Judge to give a child the opportunity to express a view, unless the Judge is satisfied that the child is not capable of forming a view.
Concerns have been raised as to the unwitting introduction of a “capacity” test. The Faculty of Advocates has highlighted that such a test is “liable to result in additional litigation and promote the use of expert evidence. It is more restrictive than the current position where the only restriction on affording an opportunity to express a view is “practicality.” The question is – how is a Judge to form that view of capability?
The present legislation, whilst containing the presumption of maturity at 12 and over, does not limit Judges in their ability to take the views of much younger children.
The Bill also requires the Court to explain various decisions affecting the child to the child concerned. Questions and concerns have been raised about this; firstly as to the appropriateness of this in every circumstance, as a “blanket rule” and secondly as to how practical this is. The Court of Session Judges have commented that it would be unworkable for the judiciary to explain decisions to the child due to the volume of orders made on a daily basis. They feel that the primary responsibility to explain decisions to the child should remain with the parents.
Many are arguing for judicial discretion to be allowed to continue in this important and fact-sensitive matter.
- Regulation of child welfare reporters and curators ad litem
Child welfare reporters are appointed by the Court to provide a report on a child’s welfare in court cases and Curators ad litem are appointed to represent the child’s interests in litigation, where the child is not able to represent themselves.
Child welfare reporters are to become regulated under the new legislation and a register of reporters is to be established. Reporters will have to meet eligibility criteria for membership of the register, ensuring that they possess the relevant skills and training to deal with young people. Individuals will also be removed from the register if they do not meet the required standards.
The Bill proposes that a similar register is created for Curators ad litem. It is proposed that the appointment of a curator ad litem is reassessed every 6 months and the Court must give reasons if the appointment is continued.
The Court of Session judges, have raised concerns about the “practicalities and workability” of these aspects of the Bill. Whilst they welcome the establishment of registers, the judges argue that such registers should be maintained by the Courts and not by the Scottish Ministers, as is currently intended. The Faculty of Advocates consider that such registers are best maintained at a local, rather than, national level. They consider that training requirements being made clear is a positive step and that such training is best offered at a local level. As for the 6 monthly re-appointment of Curators ad litem, the Faculty consider this to be “creating an extra-procedural step which will only increase litigation expense. “
- Regulation of child contact centres
Contact centres offer a safe place for children to meet non-resident family members. The Bill proposes that where a Court makes an order for contact to take place in a contact centre, this must be a regulated centre. It is intended that inspections will take place to ensure centres meet the minimum standards. However, questions immediately arise as to resources and what should happen in the event that there is not a regulated contact centre for those who require to use one, for example, in remote and rural areas.
At present, Judges can direct contact to be supervised for example by grandparents. It seems that this should remain an option in the absence of a regulated contact centre.
- Promotion of contact between looked after children and siblings
The Bill provides that local authorities must take steps to promote direct contact between a looked after child and their siblings. The proposed legislation sets out that such steps should practicable and appropriate. A word of caution however; it should be remembered that in some cases promotion of sibling contact is not always in one sibling’s best interests.
- New statutory checklist of factors to be considered by the Court when considering the welfare of the child
A list of factors to be considered by the Court when deciding whether to make an order in relation to contact or residence has been proposed. At present, the best interests of the child are considered as a matter of principle. We would agree with the Faculty of Advocates in their assessment that “this approach is preferable to and more flexible than a list of factors which must be considered in making a decision in the best interests of the child.”
The Court of Session judges also comment that the statutory list of additional factors which the Court must take into account when considering the child’s welfare adds little value to the Bill, as the courts already take “a holistic view … having regard to all relevant factors.”
- Special measures to assist vulnerable witnesses and parties
Domestic abuse complainers and their children will be allowed new special measures for giving evidence, such as the use of screens and live video links.
Restrictions will also be put in place to prohibit a party to the proceedings from personally conducting their own case where there is a vulnerable witness, in order to prevent further harm to the witness.
- Duty to investigate failure to obey a court order
Where an individual fails to comply with a Court order, a person seeking to enforce the order can go back to Court to hold the individual in contempt of court. The Bill provides that where an individual has not complied with a contact or residence order, the Court has a duty to investigate why the order has not been complied with. The Sherriff’s Association has raised concerns that this may undermine the Sheriffs in taking a robust approach to the enforcement of contact orders. Court of Session judges also comment that the new duty would “encourage parties to disobey a court order in order to draw attention to what they perceive to be its injustice, and so indirectly seek to bring about its variation or discharge.”
What happens next?
The next stage in the law-making process is for the Bill to be debated and amended in Parliament. Based on the written submissions to the Scottish Parliament’s Committee, it is evident that quite a number of amendments have been called for. It remains to be seen whether critics’ views will be heard in any amendments made.
If you require advice on any of the issues mentioned in this article, please contact a member of the Thorntons Family Law team.
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