A practitioner's perspective on the Children (Scotland) Act 1995

A brief history of the 1995 Act

The Children (Scotland) Act 1995 ("the 1995 Act") was a landmark piece of legislation that forever changed the way Scots law views the relationship between children and parents. At the core of the legal framework espoused by the 1995 Act is the re-framing of the language as it relates to parents and their relationships with their children. The 1995 Act has been described as mirroring the English Children Act 1989. While there are similarities between the two pieces of legislation, the 1995 Act incorporated the three over-arching principles of the United Nations Convention on the Rights of the Child (UNCRC) non-discrimination (Article 2); a child’s welfare as the primary consideration (Article 3); and the views of the child (Article 12). As this article is drafted from the perspective of a family law solicitor, the focus will be Part I of the 1995 Act dealing with parents and guardians.

Parental rights and responsibilities

Section 1 of the 1995 Act outlines the "parental responsibilities" a parent has in relation to their child. These include the responsibility to safeguard and promote the child's health development and welfare together with providing guidance and, if the child is not living with the parent, to maintain a personal relationship and direct contact with the child on a regular basis. The assumption being that the child is cared for by their parents and is also afforded the opportunity to maintain contact with them. Section 2 of the 1995 Act outlines the "parental rights" a parent has to "enable him to fulfil his parental responsibilities in relation to his child". The 1995 Act is deliberate in its use of language; with a shift away from the emphasis of the rights of the parent to the importance of the rights required only insofar as they relate to fulfilment of the responsibilities in relation to their child.

The language of the 1995 also marked a shift away from previously defined terms of "custody" and "access" to the terms "residence" and "contact". Another intentional pivot from connotations of ownership, possession and control of children by their parents.

Welfare

Section 7 of the 1995 Act makes it clear that the welfare of the child is the paramount consideration for a court when being asked to make an order relating to the parental rights and responsibilities of a parent. This is often known by family law practitioners as "the welfare principle". The term "welfare" is not defined in the 1995 Act, and it is understood that this was an intentional omission affording judges interpreting the legislation enough flexibility and discretion to decide each case on its merits while always focussing on the paramount consideration: the welfare of the child. The welfare principle is a malleable concept which is both its power (offering flexibility to decision makers) and its drawback (such a discretionary concept is impossible to challenge). While the term "welfare" is not defined, the court is directed to also consider other principles when making a decision in respect of a child, for example, the child's age and maturity, the child's views and whether it's better for the child that an order is made than no order is made at all.

What did the 1995 Act get right and what did it get wrong?

Children at the forefront

The 1995 Act was heralded as a piece of legislation which put children at the centre. In the decades before the 1995 Act, there had been a traditional notion about the rights of parents in respect of children. The 1995 Act, however, provided a framework which focused on a more child-centric view of what is in their best interests.

The views of the child

The 1995 Act directs that all children should be afforded the opportunity to express their view in court actions pertaining to their welfare. This is a fundamental part of the Act, again putting children and their views at the forefront of the minds of decision makers when considering whether to make an order in respect of a child. The views of the child are a cornerstone of the 1995 Act and enshrine the notion of children as independent individuals, rather than extensions of their parents. There is a presumption contained within section 6 of the 1995 Act which states that "a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view". While this may have been considered innovative in the 1990s, the view which has evolved over the past 30 years is that children younger than 12 years old are capable of both forming a view and expressing it.

No presumption of shared care

Some groups were critical of the 1995 Act for not enshrining a statutory presumption that children benefit from shared care arrangements (i.e. that care of the child is shared equally between both parents). While other countries across have adopted the presumption, this was not included in the 1995 Act. This issue was addressed in the Scottish Government's 2018 consultation paper(s) in respect of the 1995 Act. The consultation specifically asked respondents:-

• Should legislation be made laying down that courts should not presume that a child benefits from both parents being involved in their life?

• Should a child have contact with both parents? - 54% said only when it was good for the child;

It is notable that 52% of respondents said no to the first question and, in respect of the second, 54% of respondents said a child should have contact with both parents only when it was good for the child. These responses indicate that the overarching view is that the paramount consideration should remain what is in the best interests of the child. There have been discussions in recent years as to the merits of a statutory presumption in favour of shared care and whether this would better promote the welfare of the child. Those in favour of a statutory presumption argue that it provides equality between both parents together with a level of clarity and predictability in respect of the outcomes in litigated cases. While the courts may consider shared care, the lack of a presumption in favour of shared care is not necessarily a justifiable criticism of the 1995 Act. It may be submitted that including a statutory presumption in favour of shared care arrangements for children is not aligned with the paramount consideration and the cornerstone of the 1995 Act, what is in the best interests of the child. If the 1995 Act contained a statutory presumption in favour of shared care, it would mean that shared care would be the starting point for children's care in Scotland, a presumption which would require rebutting. Both the lawmakers and the courts in Scotland have been reluctant to endorse a presumption that shared care is in a child's best interests following the separation of their parents.

The 2020 Act and the evolution of the law

Twenty-five years after the 1995 Act, the Children (Scotland) Act 2020 ("the 2020 Act") was born. Passed by the Scottish Parliament on 25 August 2020 and receiving Royal Assent on 1 October 2020, the purpose of the 2020 Act was to update the law in-line with modern attitudes and remedy the pitfalls of the 1995 Act and align Scots law with the UNCRC. In 2018, the Scottish Government ran a public consultation on potential changes to the 1995 Act. The overarching responses signified that the respondents considered that the 1995 Act remains a useful and respected piece of legislation. The proposed changes to the law, however, reflected an evolving modern Scottish society and providing children who are at the centre of disputes with more autonomy while also protecting vulnerable children and adults.

In many areas, the 2020 Act goes one step further than the 1995 Act to put children and children's views at the heart of the decision-making process.

• Replacing of the current presumption that only children aged 12 and over are mature enough to provide their views to the courts and children’s hearings.
• Placing an obligation on the courts to explain their decisions to children in a way they will understand.
• Replacing the "Form F9" in favour of free expression for children (whether this be in the form of drawings, letters or any form the child wishes to express).

The 2020 Act seeks to replace the presumption that only children aged 12 and over are mature enough to give their views and instead states that all children are capable of giving their views (regardless of their age), except in exceptional circumstances. Judges will retain a sufficient degree of discretion in this regard, having to consider the views of the child, while taking into account their age and maturity.

The 2020 Act is an ambitious piece of legislation. While some provisions came into force immediately, unfortunately, portions of the 2020 Act have yet to be implemented. The Scottish Government have not provided a definitive timeline for the implementation of the majority of provisions of the 2020 Act, which is deeply unfortunate. The Scottish Government have cited budgetary constraints as the reason for the delayed implementation. Five years on and the main criticism of the 2020 Act is that there has been a failure to commence the most radical and ambitious sections, meaning that Scotland's most vulnerable children have not been able to realise the benefits of the bold provisions of the 2020 Act.