On 1 October 2020, the Children (Scotland) Bill was given Royal Assent and the Children (Scotland) Act 2020 ("the Act") was born.
In our last insight, we focused on what the changes brought about by the now Act meant for a child. But the Act brings about changes that impact wider family members, such as siblings and grandparents. What is the impact of the Act if you are a sibling or a grandparent?
I am a sibling of a 'looked after child'
The bond shared by siblings can be a powerful one. The Act recognises the importance that siblings are given the opportunity to remain in contact with one another. This is particularly so where one child is looked after by someone other than a parent, such as a local authority. Under section 13 of the Act, a local authority looking after a child must promote "personal relations with siblings where appropriate". The Act places a duty on local authorities to consider how contact can be maintained between siblings and to promote such sibling contact. The provision created by the Act places an onus on local authorities to take into account the views of siblings when it comes to maintaining sibling relationships.
Additionally, section 25 of the Act amends parts of the Children's Hearings (Scotland) Act 2011 by giving a qualifying sibling or relative the right to participate in a children’s hearing when previously, they had no such right. Siblings or other qualifying relatives will have the right to be notified of a hearing, to be provided with paperwork that is relevant to them and to attend, be represented at and seek a review of any hearing.
I am a grandparent and I want to be involved in my grandchild's life
Following the recent Covid-19 restrictions, lots of families will be keenly aware of the important role some grandparents play in caring for children. They act as babysitters, teachers, taxi drivers and provide love, support and guidance to the younger generations. At present, our laws in Scotland do not make specific provision for grandparents to maintain relations with a grandchild. The Scottish Government consulted on a possible presumption in favour of contact between children and their grandparents but ultimately, this was not included.
Instead, section 16 of the Act makes additions to the statutory factors the court must take into account when reaching a decision on the care and wellbeing of a child. Those additional factors include that the courts must look at the impact of any orders it makes on the child's relationships with i) his or her parents; and ii) other important people in his or her life.
This additional provision intends to pave the way for grandparents (and siblings) to apply to remain involved in the care and wellbeing of a child. In other countries, such as Canada and Australia, their laws go further by specifically mentioning grandparents in their equivalent list of statutory factors. What the Act does do is to recognise that each circumstance is unique - a child's life is not linear. Any order made in relation to a child's care and wellbeing should now have regard to those other important relationships – not just the parent/child relationship.
We have a number of child law specialists in our team at Brodies. Sarah Lilley, based in our Highlands office, is an accredited specialist in child law. In her view: - The importance of the roles that siblings and grandparents play in the lives of children cannot be underestimated. In my experience of handling family cases over many years, when families separate these important relationships can become strained. These changes to the law provide welcome clarity in what have, until now, been areas of uncertainty."
Our next insight will cover the changes brought about by the Act which will affect professionals and how they operate in this area of law – solicitors, social workers, child welfare reporters and Sheriffs/Judges. In the meantime, should you have any questions, please do not hesitate to contact Kate Bradbury or another member of the Brodies' Family Law team.
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