The Government is taking steps to strengthen the family justice system in Scotland. The Children (Scotland) Bill looks at how contact with the court system impacts on children, either directly or indirectly, and how children can be further protected and assisted if they and their families become involved with the courts.
When introducing the Bill, Minister for Community Safety, Ash Denham, explained:
“We know that family breakdown can be very upsetting for children. It is our responsibility to ensure the family justice system is supportive and does not contribute to their distress. That means putting the best interests of the child first in every case and ensuring their voice is heard, including younger children.”
In this article, our Family Lawyers consider the key provisions contained in the Bill and how these changes could impact family law cases and the families we represent.
What does the Bill seek to do?
The Children (Scotland) Bill aims to:
- ensure children’s best interests are at the centre of contact and residence cases or Children’s Hearings;
- ensure that children’s views are heard;
- offer further compliance with the principles of the United Nations Convention on the Rights of the Child (UNRC); and
- provide greater protection to victims of domestic abuse and their children.
What are the problems with the current approach to collecting children’s views in family law cases?
The current provisions in the Children (Scotland) Act 1995 state that the views of children aged 12 years or older should be taken into account if it is considered they are mature enough to form an opinion about their care. While there is a presumption that children aged 12 or older can do this, it is accepted that all children are different; some over the age of 12 will lack the maturity to understand the issues and express their views, while others under 12 may have sufficient maturity.
The Bill proposes retaining the current presumption, but that a new section is added stating that all children must have the opportunity to express their views. This should happen in a way that is suitable for the child, and their opinion should be taken into account (while also bearing in mind the child’s age and maturity).
Will courts need to explain decisions to children?
Under the Bill, children will be entitled to receive an explanation of decisions made by the court, including why they were made and how they will affect the child. This must happen in a way that they can understand. The Bill states that this can be done face-to-face, by letter, electronically or with the assistance of a Child Welfare Reporter.
What other steps may be taken to make sure a child’s best interests are represented in court proceedings?
Currently, the court can appoint a Curator Ad Litem to represent the child's interests in contested proceedings. This happens when the sheriff believes the child needs independent assistance to represent their best interests. This might be the case if the interests of the parent conflict with those of the child. The Bill proposes continuing this practice, but with some changes.
When a Curator Ad Litem is appointed, the sheriff must:
- be satisfied that this is necessary to protect the child’s interests;
- provide reasons for the appointment; and
- review the appointment every six months and explain their reasoning if they believe the appointment should continue.
The Bill also proposes that a register of Curators should be established to ensure they are qualified and appropriately trained.
Further, regulations are suggested for the appointment, training, payment and function of Child Welfare Reporters who can be asked by the sheriff to collect information from children and report back to the court in child proceedings.
How could the Children Bill change the court’s approach to children who are at risk of domestic abuse?
In cases where children may have been a victim of or witness to domestic abuse, the Bill introduces new provisions offering greater protection. It establishes several factors that the court should consider before making an order that relates to parental rights and responsibilities, such as a residence or contact order.
These factors include:
- The need to protect the child from abuse or the risk of abuse
- The effect that any abuse or risk of abuse may have on the child
- The ability of a person who has carried out abuse, or may carry out abuse, to care for the child
- The effect that abuse, or the risk of abuse, might have on a parent’s ability to carry out their parental responsibilities
“Abuse” includes:
- Violence, harassment, threatening conduct or any other conduct that might result in physical or mental injury, fear, alarm or distress
- Abuse of a person other than the child
- Domestic abuse
“Conduct” includes speech or presence in a specific place or area.
What does the Children Bill say about children as vulnerable witnesses?
The Bill aims to provide children with more protection when giving evidence in proceedings by categorising them, along with other types of witnesses, as vulnerable witnesses in certain cases. This measure aims to protect children from inappropriate and intimidating questioning from another party to the case, for example by someone who has abused or is accused of abusing the child.
At Children’s Hearings, steps will need to be taken to determine if anyone giving evidence is vulnerable before the hearing takes place. If required, the court would then be able to make an order about how evidence is taken and any special measures that should be put in place to protect vulnerable or child witnesses. This could include giving evidence by video link, using screens to protect the identity of the witness or using supporters to help children give evidence.
How has the Bill been received?
Campaigners from children’s charities and those supporting victims of domestic abuse have welcomed the proposals.
Chief executive of Children 1st, Mary Glasgow, said: “This important new legislation will put children's voices, views and safety at the centre of family law decisions.”
“Standardising and regulating the system of child welfare reporters should mean every child gets the support they need wherever they are in Scotland.”
Dr Marsha Scott of Scottish Women’s Aid, said: “This piece of legislation will be vital for child victims of domestic abuse, as well as their mothers.”
“We have done a lot of work in engaging with the Scottish government so far to make this bill child and women competent, and we welcome the news that child contact centres and child welfare reporters will be regulated."
What happens next?
The Bill is currently at stage 1 of the legislation process. At this time, it is impossible to say what the final legislation will look like. As it progresses through parliament, we will be paying close attention to committee and parliament scrutiny of the issues and to any amendments that may be proposed.
Contact our Child & Family Law Solicitors in Glasgow, Coatbridge, Airdrie, Shetland
If you would like advice or support on any of the issues discussed in this article, please do not hesitate to contact us. We provide our clients with a high quality and affordable family law service. Our areas of expertise include Child Contact, Children’s Panel Hearings and Appeals, Social Work Referrals, Residence (Custody) and Protection from Abuse/Harassment. To find out how we can help with your family law matter, contact Thompson Family Law Solicitors on {{CONTACT_NUMBER}} or via our online enquiry form.