The Children (Scotland) Act 2020
What’s happening and why?
The Scottish Parliament is currently considering new laws relating to children in Family Court actions in Scotland, with a view to bringing our legislation into line with modern family arrangements and societal developments.
The consultation process was launched in May 2018 and the Bill is currently going through scrutiny.
The focus of the new legislation is to ensure that children’s best interests are at the centre of every family law case and that their views are heard by the Court.
The views of the child
• Currently, there is a presumption that a child aged 12 or older has sufficient age and maturity to form a view about issues in relation to their care and upbringing. One of the consultation questions was whether this presumption should be removed.
• The Bill has retained the presumption, but it should be remembered that it is only a presumption which does not apply in every single case.
• There will be changes to the process of, and an emphasis on the importance of, taking a child’s views, whilst ensuring that they are taken in a manner which is suitable to the child.
The views of others
• Many parents will be pleased to read that the new Bill ensures that, if one person is making a major decision regarding the exercise of Parental Rights or the fulfilling of Parental Responsibilities, they must have regard to the views of the other person who shares those
Rights and Responsibilities
• Neither parent is entitled to make unilateral decisions about important issues in a child’s life, however it is encouraging to see the new legislation will reinforce the importance of each party having a voice.
Explanation to the Child
• Children will be entitled to receive an explanation of the decisions made about their lives by the Court. The decision must be explained to the child in a way the child will understand. The Sheriff could meet with, or write to, the child. Alternatively, a Child Welfare Reporter could be appointed to undertake the task.
• The Bill proposes important changes to the way in which evidence is taken from vulnerable parties. There is to be a special measure to prohibit parties from conducting their own cases in person where there is a vulnerable witness involved.
• If that party refuses to appoint a solicitor, the court can appoint one for them.
• This is to lessen any trauma felt by victims of abuse when giving evidence in family proceedings.
• The Scottish Ministers are to have powers to make rules regarding regulation of contact centres. The proposal is that any referral to a centre must be to a “regulated contact centre”.
• There will be minimum standards to be met by contact service providers, inspections and standards relating to qualification and training of staff.
• This will ensure the safety of children in contact centres.
One of the questions raised by the Consultation was “should there be a presumption in Scottish law that shared care is in the best interests of a child?” – 50% of respondents said yes.
There is research to support the hypothesis that shared care is in the child’s best interests. If such a presumption were to exist in law, it would, perhaps, level the playing field. We often find that the parent who has left the family home is the parent struggling to persuade the court they should have contact, simply because, at that point in time, they do not. If there was a presumption that they should have that contact, reasons as to why they should not would have to be given, rather than reasons as to why they should. This has not been addressed by the new Bill.
Our highly experienced and well-respected team have expertise in all areas of family law and are on-hand to guide you through, what can often be a difficult time, sensitively and logically to ensure you and your family’s needs are met. We understand that everyone’s circumstances are different and our solicitors will give practical advice on the options available to you and how best to resolve your situation.
Our Family Law Department consists of Claire MacAlpin (Partner) and Billie Smith (Associate) and Sandi Kerr (Paralegal).