Thirty years of the Children (Scotland) Act 1995 – where have we been and where are we going?

2025 marks the 30th anniversary of the Children (Scotland) Act 1995, a cornerstone in child law in Scotland. Heralded as a progressive statute at the time of its enactment, the Act was the product of evolving philosophies regarding child welfare, autonomy, and the role of the state in family life. 

Having reached this significant milestone, it is timely to reflect upon the Act’s enduring principles, its influence on policy and practice, and to critically appraise its successes and shortcomings within an international context.

The core principles of the Children (Scotland) Act 1995

The 1995 Act captured the zeitgeist of time - a climate of growing recognition of children’s rights. The Act was among the first UK statutes to explicitly embed the principles of the United Nations Convention on the Rights of the Child (UNCRC), following its UK ratification in 1991. The 1995 Act sets out two “overarching principles”, which the court must have regard to in considering whether or not to make orders in respect of a child:

• Welfare principle: the child’s welfare is to be the paramount consideration in all decisions relating to their upbringing. In making decisions regarding children, the court must consider all relevant material and decide what would be most conducive to the child’s welfare. The court must not make an order unless doing so would be better for the child than not making an order.
  
  
• Child’s views: the court has a duty to consider the views of children when making any order in respect of their welfare.

These core tenets reflected a shift away from paternalism and towards a more participatory and rights-based approach, positioning the child as a central actor in decisions affecting their lives.

Policy developments over three decades

In addition to the passing of the 1995 Act, the 1991 UK ratification of the UNCRC heralded a series of policy initiatives in Scotland, notably:

• ‘Getting it Right for Every Child’ (GIRFEC) introduced with the passing of the Children and Young People (Scotland) Act 2014.
  
  
• The creation of the Commissioner for Children and Young People in Scotland through the Children and Young People (Scotland) Act 2003.
  
  
• The modernisation of the system of adoption in Scotland through the Adoption of Children (Scotland) Act 2007.
  
  
• The reformation of the children’s hearings system through the Children’s Hearings (Scotland) Act 2011.

A notable trend has been the increasing recognition of the importance of children’s voices in decision-making. Mechanisms such as the appointment of curators ad litem, and the use of child-friendly language and processes have become more prevalent.

Achievements of the Act

The 1995 Act itself has undoubtedly achieved much over the past three decades. Among its most significant contributions are:

• The formal recognition of the child’s welfare as the paramount consideration in legal decisions, establishing a clear standard for judicial reasoning.
  
  
• The statutory requirement to ascertain and take account of the child’s views, which has led to greater child participation in court proceedings and other forums.
  
  
• The clarification of the meaning and importance of parental responsibilities and rights which replaced the former notion of parental rights with a more modern, responsibilities-based framework.
  
  
• The establishment of a robust system for public law intervention, delineating the grounds and procedures for child protection orders and compulsory supervision.
  
  
• Progressive influence on subsequent legislation and policy, both in Scotland and across the UK.

Limitations and critiques

Despite its many achievements, the 1995 Act has not been immune to criticism. Principal among these are concerns about implementation gaps, inconsistencies, and the realities faced by children and families. Firstly, while the principle of the child’s voice is well established, in practice meaningful participation remains variable. Research and case law reveal that children’s views are sometimes overlooked or insufficiently weighted, particularly for younger children or those with additional support needs. Challenges remain in ensuring that children’s views are genuinely heard, rather than being recorded perfunctorily. Further, concerns remain about delays in proceedings involving children, notwithstanding the Act’s emphasis on avoiding unnecessary delay. Resource constraints, complex cases, and systemic issues can all contribute to protracted timelines in litigated matters.

Scotland’s approach – a global perspective

Scotland’s child law has often been viewed as progressive by international standards, but comparative analysis reveals both strengths and areas for development. In England and Wales, the ‘Pathfinder’ is a pilot program being trialled in some family courts. It adopts a problem-solving, investigative approach to private family law cases, especially those involving domestic abuse, with the aim of achieving better outcomes for children. Key features include early information gathering and assessment to identify issues, increased focus on hearing the child’s voice, collaboration with support service for early resolution and a more structure management of cases to reduce delays and conflict. The pilot began in Dorset and North Wales in February 2022 and has expanded to other locations over the past few years with recent data suggesting that it is resolving cases more swiftly.

In Australia, ‘family dispute resolution’ (FDR) is a form of alternative dispute resolution (ADR) and is compulsory for most child-related disputes before a court action can be raised. This means that separating parents must make a genuine effort to resolve disagreements through FDR, such as mediation, before applying for court orders. Exemptions apply where allegations of domestic abuse are a factor or in situations where an urgent order is required.

It may be appropriate for Scotland’s legislators to reflect on attempts to triage child law cases in this way, assessing cases for markers of domestic abuse at an early stage. An effort could be made to signpost to support agencies when necessary and make attempts at ADR a pre-requisite before inviting the court to make a decision on a contested child law matter.

The evolution of judicial language and practice

A particularly striking development over the past thirty years has been the evolution of judicial language and attitudes in child law cases. Earlier judgments often reflected maternal bias with judicial commentary such as these being prime examples: “prima facie a mother is better qualified than a father to bring up two young girls” (Jordan v Jordan 1983 SLT 539) and “it has been and remains the practice of the court in Scotland to recognise as an important factor which has to be fully taken into account in a dispute concerning custody between the mother and father of a very young child, that during his or her infancy the child’s need for the mother is stronger than the need for a father…there is a generally recognised belief that a mother is ordinarily better able, for whatever reason, to minister to a very young child’s needs than is a father” (Brixey v Lynas 1996 SLT 908). The situation now is that decisions are no longer informed by maternal bias, and shared care is much more prevalent.

The decision of the UK Supreme Court in the English case of Re B (a child) [2009] UKSC 5 (which has been widely cited in Scottish cases) demonstrates the evolution of societal attitudes to parenting roles and genders. That case, and the case of Re G, both involved disputes between same-sex parents. In delivering the judgement on behalf of the court in Re B, Lord Kerr referred to and approved the judgement of Baroness Hale in the earlier case of Re G [2006] UKHL 43: “It is a message which should not require reaffirmation but, if and in so far as it does, we would wish to provide it in this judgment. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.”

Members of the judiciary are increasingly attentive to the way in which children’s wishes are ascertained and reported, and to the use of language that is based on welfare, rather than on parental-gender, sexuality or status. Nonetheless, there remains variation in judicial approaches. Continued professional development and sharing of best practice across Scotland, the rest of the UK and the world, remains crucial to ensuring consistency and upholding the spirit of the 1995 Act.

Reform

The Children (Scotland) Act 2020 is the primary reformative legislation, attempting to further enhance the principles of UNCRC and to provide greater consistency and accountability in relation to those tasked with upholding children’s best interests. Key reforms include:

• Clarifying and enhancing the requirement to obtain children’s views directly, with a presumption in favour of hearing from all children capable of forming a view, irrespective of their age.
  
• Provision for child-friendly information and feedback mechanisms to ensure children understand outcomes and decisions affecting them.
  
• Measures to improve consistency and quality in child welfare reports.
  
• Improved regulation and accountability of contact centres.

Looking to the future

Thirty years after its passage, the Children (Scotland) Act 1995 stands as a landmark in Scottish legal history - a testament to evolving understanding of children’s rights, family life, and the proper role of the state. It has provided the scaffolding for a child-centred, rights-based approach that has shaped law, policy, and professional practice. Yet, the journey is far from complete. As Scotland continues to reform its legal framework by embracing the UNCRC, developing child-friendly justice, and seeking to address persistent inequalities and gaps in provision, the focus must be on implementation as much as aspiration. Scotland’s policy makers and legislators should observe and learn from other jurisdictions. Through study of international approaches and examination of the lived experiences of children and families, Scotland can continue to progress towards a legal landscape that truly reflects the needs and rights of its youngest citizens.

The thirtieth anniversary of the 1995 Act is a moment not just for reflection, but for renewed resolve - ensuring that the next thirty years deliver on the promise of the past, and that Scottish child law remains at the forefront of international best practice.