In recent years, Scotland has been leading the way within the UK in terms of rights for children and young people, not least by being the first UK jurisdiction to formally incorporate the United Nations Convention on the Rights of the Child ("UNCRC") into domestic law. Separately, issues surrounding gender identity and trans rights have been at the forefront of Scottish government policy lately – albeit embroiled in controversy and litigation, and generating a wide divergence of opinion.
As family lawyers, we are sometimes called upon to advise clients on matters where children's rights and LGBTQ+ rights converge – for example, where a child is experiencing gender dysphoria and parents disagree about how to support them, or where a young person's choices regarding their name, pronouns or gender identity are a source of conflict between parent and child. In such circumstances, how does Scots family law enable the voices of the young people at the heart of these disputes to be heard?
The right to be heard, enshrined in law
Scotland has a long-established practice of enabling the voices young people to be heard in court proceedings concerning their care, welfare or upbringing. It has been almost 30 years since the Children (Scotland) Act 1995 came into force, creating an obligation on courts to allow children an opportunity to express a view about matters concerning them (with the presumption that a child aged 12 or over is of sufficient age and maturity to form a view).
That legal framework has been enhanced more recently by Children (Scotland) Act 2020 which introduced the concept that all children, regardless of age, may be capable of providing a view and should be given an opportunity to do so in a manner of their choosing. Although not yet in force, sheriffs and judges are routinely considering the views of children much younger than twelve in cases concerning their care and upbringing.
That approach is supported by the incorporation of the UNCRC into Scots law last year, including Article 12 which provides the right for every child to be heard in matters which affect them, and to participate fully in the life of their family, community and society. But what happens when those rights conflict with the rights of parents to raise their children as they deem appropriate?
Children's rights vs parental rights
Whereas Scots law gives a child the right to be heard, it also confers upon legal rights and responsibilities on parents to direct and guide their child and to make decisions in a manner which they deem is in the best interests of their child. That can make for a very difficult balancing act - to ensure that the rights of parents and children are not overlooked, while also ensuring that the child's welfare is the primary consideration (which is the overarching principle governing child law in Scotland).
Key areas around which we have been asked to advise clients are the potentially highly contentious and sensitive issues of gender identity and gender dysphoria in young people. Parents may disagree over their child's wish to be known by a name other than their birth name, or to identify as a particular gender, or as non-binary. Until they reach the age of sixteen, a young person cannot legally change their name without the consent of their parent(s) (or anyone who holds parental rights and responsibilities in respect of them). However, a young person may choose to adopt a different name or gender identity in some or all aspects of their life until they are old enough to take formal steps, without requiring parental consent.
There may also be circumstances where a child identifies as a particular gender at school or has a preferred name or pronouns which they use amongst their peers, but they may not feel able to do so at home or in other settings. In 2021, the Scottish Government provided guidance to schools about situations where certain information regarding children can be withheld from their parent in specific circumstances. This guidance is controversial as it is viewed by some as enabling children (and schools) to override the rights of parents. However, personal information regarding children is withheld in other circumstances where doing so is deemed to be in the best interests of the child – for example, withholding medical records to protect a child from harm or risk of harm.
Child welfare reporters
Views of children and young people are often obtained in family law disputes with the assistance of a Child Welfare Reporter ("CWR") – a suitably qualified and experienced family lawyer, who is instructed by the court to meet with the child and ascertain their views on the matters in dispute. The 2020 Act introduced provisions which, once implemented, will create a register of CWRs with a view to formalising and standardising the training they receive. This may provide an opportunity to include training in relation to gender identity and gender dysphoria for CWRs and others involved in the family court system, as has been done in other jurisdictions. In England and Wales, CAFCASS (the organisation whose officers provide a similar function to CWRs) has partnered with the Family Justice Young People's Board and other stakeholders to provide guidance and training to their officers to assist with ensuring cases involving LGBTQ+ young people are handled sensitively, respectfully and with privacy for the young person where necessary.
The future
It is recognised that these are a highly emotive areas of law, and the balancing of children's rights and parental rights is an extremely difficult task. It remains to be seen how matters develop in Scotland but, irrespective of where law and policy may take us, the welfare of the child must remain the paramount consideration.
Should you require any advice on any aspect of child or family law, please get in touch with one of our LGBTQ+ family law experts.
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