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Family Law included in Scottish government’s plan for legislative reform

Family Law included in Scottish government’s plan for legislative reform

This week, the Scottish Government revealed the much awaited Children (Scotland) Bill following their extensive consultation, which began over a year ago. Many practitioners will agree that an overhaul of the Children (Scotland) Act 1995 was long over-due. Whether the Bill goes far enough is debatable.

The explanatory notes to the Bill declare that the policy objectives are to ensure that the views of the child are heard in contact and residence cases, to further protect victims of domestic abuse and their children, to ensure that the best interests of the child are at the centre of any contact and residence cases and children’s hearings and to further compliance with the United Nations Convention on the Rights of the Child in family court cases.

The key proposed reforms include:

1.  A change to the wording of Section 6 of the Children (Scotland) Act 1995, which relates to the views of the child

There appears to be a subtle semantic shift to emphasise that a court must give the child an opportunity to express their views and have regard to any views expressed, taking into account the child’s age and maturity unless satisfied that the child is not capable of forming a view or the location of the child is not known. The present statutory provisions state that a court “shall have regard so far as practical to the views (if he wishes to express them) of the child concerned, taking account of the child’s age and maturity.” The presumed age of twelve after which a child is presumed to be capable of forming a view has remained unchanged.

It is not uncommon for parents to complain to family solicitors about what they perceive to be a court system that does not place enough weight on the views of the child. Reform to make the voice of the child a central focus in the process is positive progress.

2. Explanation of decisions to children

A major innovation relates to accountability of the court to the child for decisions in respect of orders in terms of Section 11 of the Children (Scotland) Act 1995. Where the court makes, varies or discharges or refuses to make, vary or discharge an order under Section 11 of the Children (Scotland) Act 1995, it is proposed that a duty be placed upon the court to ensure that the decision is explained to the child to whom the decision relates in a way that the child can understand. The exception to this duty is where the court is satisfied that the child would not be capable of understanding an explanation, that it is not in the best interests of the child to give an explanation or where the location of the child is not known. The court can fulfil this duty by giving an explanation to the child itself or arranging for it to be given by a Child Welfare Reporter.

This mechanism for a court to ensure that a child receives impartial information regarding an important decision affecting that child is to be particularly welcome. It follows the innovative approach adopted by some judges south of the border and also by some sheriffs in Scotland. It would avoid decisions being imparted to children in a partisan manner by a party to the action and recognises the right of the child to be involved in the process.

3.  A statutory statement of the paramountcy of child’s welfare and non-intervention presumption

It may be well known that that at the heart of the Children (Scotland) Act 1995 is the principle that the welfare of the child is the paramount consideration and that the court ought not to make an order unless it is better for the child than none be made, this has been explicitly repeated in a proposed Section 11ZA. This part of the Bill also suggests that when considering the welfare of the child and the no order principle, the court must consider the need to protect the child from abuse (or the risk of abuse), the effect that abuse (or risk of abuse) might have on the child, the ability of a person to care, or otherwise the needs of, a child where that person has carried out or might carry out abuse which affects or might affect the child and the effect that abuse or the risk of abuse might have on the carrying out of parental responsibilities in connection with the welfare of the child by a person who has those responsibilities.

4. Vulnerable witness measures for family courts

The Bill deals with situations where parties to actions are said to be victims of domestic abuse or forced marriage as well as those against whom interdicts or non-harassment orders have been granted. The court is authorised to prohibit one or more patties to an action personally conducting their own case from the beginning of the first hearing at or for the purposes of which a witness is to give evidence. The court is empowered to appoint a solicitor to a party who is prohibited from conducting their own case if they do not have legal representation. The Bill goes so far as to place a presumption of personal bar on a party conducting their own case as being the most appropriate special measure for a vulnerable witness. The Bill deals with vulnerable witnesses (including children) generally and proposed special measures that can be implemented including ordering evidence by televised link, a screen and/or a supporter.

These provisions are long-overdue to offer the family courts the same tools as the criminal courts to deal with vulnerable witnesses. The present system does not adequately cater for the needs of vulnerable witnesses. Victims of domestic abuse have, for some time, complained at the re-victimising experienced when having to participate in family court proceedings, something these reforms will hopefully alleviate.

5.Child Welfare Reporters

The Bill proposes that the appointment and remuneration of Child Welfare Reporter’s be subject to far greater scrutiny by the Scottish Ministers. It proposes that a register of Child Welfare Reporters be established and maintained. The Bill proposes that Scottish Ministers be empowered to make provisions for the requirements that a Child Welfare Reporter must satisfy to be included and remain on the register, the process for including a Child Welfare Reporter to be removed from the register, the process for how and by whom a Child Welfare Reporter is to be appointed in a case and the remuneration of Child Welfare Reporters.

The centralisation of the process for appointment of Child Welfare Reporter’s should offer consistency across Scotland, which is lacking at present. It offers an opportunity to ensure that Child Welfare Reporters have the requisite qualifications and experience to carry out this important task.

6. Regulation of Child Contact Centres

The Bill provides that where a court makes an order for contact at a contact centre in Scotland, the court may only require that contact to take place at a contact centre operated by a regulated contact service provider. The legislation then deals with how contact centres will be regulated, including the Scottish Ministers being able to make provisions for minimum standard (including accommodation and qualifications and training of staff), for registration of contact service providers.

It is understandable that the government considers it necessary to regulate contact centres. These organisations deal with vulnerable children and families and it is important that there is an independent mechanism to ensure that they are suitable and ensure uniformity in standards across Scotland.

7. Promotion of sibling contact between looked after children and siblings

The Bill places a statutory duty on local authorities to take such steps to promote personal relations and direct contact for looked after children.

This follows concerns across the profession that insufficient weight is being attached to this by local authorities, often faced with budgetary and staffing constraints.

8. Curators ad Litem

The Bill provides that the court, when making an order under Section 11, may only appoint a curator ad litem if the court is satisfied that it is necessary to do so to protect the child’s interests. The Bill also proposes a register of curators ad litem in identical terms to that of Child Welfare Reporters.

As with Child Welfare Reporters, regulation to ensure that curators ad litem are suitably qualified and experience as well as uniformity across Scotland would be beneficial.

9. Failure to Obtemper Section 11 Orders

The Bill proposes that where a court is satisfied that a person has failed to obey an order of court, the court is obliged to consider the reasons for that failure. The court is empowered to appoint a Child Welfare Reporter to investigate and report to the court on the circumstances of the person’s failure or alleged failure to obey the order.

Although this may appear insignificant at first glance, it enables courts to get to the bottom of the reasons why a court order has not been obtempered, as opposed to simply dealing with the punitive elements of failing to obtemper when satisfied that this has taken place. The court is armed with greater resources to carry out this task and the proposed reform appears to offer a more pragmatic approach in family cases to this problem.

10. Conferral of Parental Responsibilities and Rights where birth is registered outwith the U.K.

The Bill allows the Scottish Ministers to make regulations for the conferral of Parental Responsibilities and Rights upon fathers and second female parents where the child’s birth is registered outwith the United Kingdom, where the mother of the child has consented to this.

11. Delay in proceedings

In what can only be seen as an attempt to resolve the issue of delay that many in the profession consider to be an issue and unnecessary in family cases, the Bill introduces a duty upon the court to consider the risk of prejudice to the child’s welfare that delay in proceedings would pose.

It is hoped that, if enacted, this would encourage an attitudinal change of courts and practitioners to protracted proceedings in relation to children and encourage a focus on timeous decision-making.

Elements of the consultation that the Scottish Government chose not to pursue and include in the Bill, some of which are surprising, include:

1.Introducing a presumption that children benefit from contact with their grandparents;
2.Replacing the term “contact” and “residence” which a new term such as “child’s order”;
3.Removing the term “parental right” from the legislation;
4.A legislative presumption in favour of shared parenting;
5.The removal of Parental Responsibilities and Rights by the criminal court of a person convicted of a serious criminal offence;
6.Conferring Parental Responsibilities and Rights on all fathers;
7.Compulsory joint registration of births and
8.Compulsory DNA testing in parentage disputes.

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