The Children (Scotland) Act 2020 received royal assent on 1st October 2020. With the exception of a small number of provisions which came into force immediately, the bulk of the Act's substantive provisions which will effect significant change for many areas of child law are not yet in force and there is no definitive timeline for implementation.
1. The views of the child
As the law currently stands, all children should be given an opportunity to indicate whether or not they wish to express a view in court actions relating to their welfare. If a child indicates that they wish to provide a view, then an opportunity must be provided for him/her to do so. There has been a presumption for some time that a child aged 12 or older is mature enough to form a view, although it has been recognised increasingly that younger children should also be given the opportunity to do so. The court then determines how much weight to give to those views when considering them in the context of the child's age and maturity.
The 2020 Act introduces the concept that all children (regardless of age) may be capable of providing their views in some manner and ought to be given the opportunity to do so. The method to be adopted by the child to impart those views will be determined by the child where possible. They might speak to the Sheriff or a child welfare reporter or use a less formal approach such as letter writing, or drawing, or be given access to play therapy or they might provide a video to the court. The court will only make a decision about how those views are to be obtained if the child does not express any preference as to how their views should be taken or if the method suggested by the child is impractical.
The court can still determine that a child is too young or immature to provide a view and a child cannot be forced to provide a view against his or her wishes. Once the child's views are known, it will still be for the court to determine how much weight to give to those views.
2. Protection of children from abuse
The Children (Scotland) Act 1995 currently contains provisions which deal with the protection of children from abuse when the court is making orders about their care or welfare. When it comes into force, the 2020 Act will repeal these provisions, but the central provisions relating to protecting children from abuse will be dealt with by a new section to be inserted into the 1995 Act.
The new provision will retain the principles that the child's welfare is paramount and that the court should only intervene when necessary. It will still be recognised that the expeditious resolution of cases involving children is desirable.
In cases in which abuse is a factor , the 2020 Act provides that consideration ought to be given to the ability of the person who committed (or might commit) the abuse which affects (or could affect) the child, to care for or meet the needs of the child. The court will also require to give consideration to how any order made might affect the ability of someone with parental rights to discharge their responsibilities as well as the effect that abuse might have on persons who would require to interact in order to facilitate the contact ordered by the court (e.g. at handovers). How the abuse or risk of abuse will affect the care arrangements for the child will therefore be given careful consideration.
Interestingly it is not only physical abuse which is considered relevant; verbal and emotional abuse and even being present in a particular area could be considered to be conduct which is abusive.
3. Explanation of court decisions to the child
Currently, the court will make a decision and impart that decision to the parties to the litigation, usually those who have parental rights and responsibilities in respect of the child. It is then for those persons to decide how and whether to make the child aware of the court's decision. The 2020 Act requires the court to ensure that its decision is explained to the child. The only exceptions to this rule are if the child would be incapable of understanding the decision made, if it would not be in his or her best interests to be provided with an explanation, or if the child's whereabouts are unknown. The decision can be explained to the child by the court itself or by the child welfare reporter if one has been appointed. This rule applies to both interim and final orders.
4. Duty to investigate failure to obey orders under Section 11
Currently, if an order under Section 11 of the 1995 Act has not been complied with, ( that is for example an order regulating where the child will live and with whom or regulating contact between the child and the non-resident parent ) an individual seeking to enforce the order may invite the court to find the non- compliant party in contempt of court. Where the contempt is in connection with civil proceedings, the penalty for being held to be in contempt is a maximum of three months' imprisonment and/or a fine which will not currently exceed £2,500.
It is for the individual in whose favour the Section 11 order has been granted to pursue the action for contempt by way of a separate process. In practice, the party failing to comply with the order is usually afforded numerous opportunities to rectify the position and they are subjected to little more other than a few stern words from the Sheriff or Judge.
The 2020 Act provides that if the court accepts that there has been a failure to comply with a section 11 order, the onus will then be on the court to ascertain why there was a failure. The court will be obliged to seek the views of the child before deciding whether to hold the person who failed to comply, in contempt and/or to vary or recall the order previously made.
5. Support to keep children in contact with brothers and sisters/siblings
It is generally accepted that it may be in a child's best interests to maintain links with their siblings if they are unable to reside together. The 2020 Act provides that the local authority must take steps to promote personal relationships and facilitate direct contact between a looked after child and their siblings.
The local authority is also obliged, so far as is reasonably practicable, to ascertain the views of siblings and anyone else the child has lived with where the relationship has the character of a sibling relationship, for example step siblings or foster siblings (provided that they have an ongoing relationship) before making any decision relating to a child they are looking after.
6. Vulnerable witnesses and parties in civil proceedings
The 2020 Act introduces new special measures to be used to assist vulnerable witnesses involved in family proceedings. A person will be deemed to be a vulnerable witness if they are the victim or complainer in respect of criminal offences committed or alleged to have been committed by another party to the family proceedings. The 2020 Act permits the court to prohibit the perpetrator of the abuse from personally conducting their own court case, thus removing the opportunity for them to cross examine their victim/alleged victim. A person who is subject to such a prohibition will be given an opportunity to appoint their own solicitor, failing which, the court will appoint one on their behalf. Other methods can also be employed to assist a vulnerable witness such as giving evidence behind a screen or via a live television link or the use of a supporter.
7. Child Welfare Reporters, Curators ad litem
The 2020 Act requires that there is a Register of Child Welfare Reporters and a Register of Curators ad litem. Whilst these are currently appointed by both the Court of Session and Sheriff Courts, this will standardise the current practice of appointing child welfare reporters and curators ad litem on a Sheriffdom by Sheriffdom basis. The rationale is that the establishment of such registers will ensure that all child welfare reporters and curators ad litem are sufficiently trained. Similar standards for those carrying out these roles ought to be maintained across Scotland and the process for appointing individuals to these roles ought to be standardised.
8. Alternative Dispute Resolution
It is recognised that Court is not always the best place to resolve disputes relating to children. Alternative Dispute Resolution (ADR) models, namely mediation, collaboration and arbitration ought to be considered. The 2020 Act requires Scottish Ministers to make funding available for ADR where orders in respect of a child are sought or are likely to be sought, if the matter is not resolved through the use of an ADR model.
9. Child Contact Services
The 2020 Act provides that contact centres will require to be regulated and only regulated contact centres may be used if supervised/supported contact is ordered by the court. A solicitor will only be able to refer a client to a regulated centre and a failure to comply with that provision will potentially result in disciplinary action being taken against the solicitor.
This will ensure that a minimum standard is observed for the quality of accommodation on offer and to ensure that staff operating the centres have all undergone a minimum standard of training.
The Children (Scotland) Act 2020 will bring about numerous changes for those dealing with child law cases. Once in force, its provisions will ensure that the welfare of the child remains at the forefront of the legal process in Scotland when dealing with cases involving children.
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Legal Director