The Children (Scotland) Bill has passed its final stage in the Scottish Parliament, with 113 Scottish MPs voting in favour of it.
Stepping into the shoes of a child – what do the changes mean from a child's perspective?
My voice will be heard
Often at the heart of the dispute, it seems perfectly logical that children should be able to express their views about who they live with or how often they spend time with each parent. Currently, the legal presumption is that only children over the age of 12 are sufficiently mature to be capable of giving their views. But not anymore…
Ash Denham, Minister of Community Safety (SNP) stated at Parliament last week, "The presumption that a child aged 12 or over is mature enough to give their views has been replaced with a presumption that, subject to extremely limited exceptions, all children are capable of giving their views. In addition, under the bill, the courts will be required to provide children with an explanation of their decisions. The courts will also be required to seek the views of children if an order has not been complied with. Those are radical changes that will make the process more child friendly."
I will be treated as an individual
The new laws will see us move away from the use of a Form F9 (the current, court-approved form which children complete with the assistance of a parent, schoolteacher or other trusted adult) and will instead, allow children to give their views via drawings, writing letters or play therapy (this list is not exhaustive). Gone will be the 'one rule fits all' approach to inviting children to express a view.
Under the Children (Scotland) Act 2020, each child will be able to express their view in a way they are comfortable with. This will undoubtedly provide the court with more accurate, open and honest information about their wishes, feelings and worries, in turn, allowing the court to make a more-informed decision.
Notwithstanding the above, the court will still have a sufficient degree of discretion when considering the child's views and should always bear in mind the age and maturity of each individual child.
I will know what has been decided about me and why
Once a decision is made by the court, it's often left to one or both parents to explain the decision to their child. As solicitors, we often don't know how, or even whether, a decision has been communicated to a child. But that will now change…
The Bill places a requirement on the court to explain its decision to the child. This is intended to give a child the opportunity to 'debrief' on the decision with an unbiased, neutral source. A child may understandably be stressed about the outcome, worried if they 'said the right thing' or anxious about upsetting a parent. It is thought that receiving an explanation, in straight forward language, will help children to understand what has been decided and why.
The passing of the Bill is only the start of the work to improve the family court process. Next steps will be implementation of the Bill and also non-legislative work as set out in the Family Justice Modernisation Strategy.