A look at children law north of the border, part one

Children|September 10th 2019

I noticed in the news last week that the Scottish Government has published new legislation that aims to amend the law relating to children north of the border. I thought it would be instructive to see what a jurisdiction that is different but so close to ours is doing in this area, so I decided to look into it. It quickly became apparent, however, that I could not possibly do justice to such a subject in one post. In fact, I could have written quite a few posts on it. However, I will limit myself to just two, one outlining the present children law in Scotland in order to understand what is being proposed, and the second setting out the Scottish Government’s proposals to modernise the law.

Note that I will only be looking at private law children matters, not public law (i.e. involving the state). Oh, and apologies in advance to any Scottish lawyers reading this for any errors on my part

Child law in Scotland – the similarities

The starting-point for children law in Scotland is the Children (Scotland) Act 1995, which I suppose is the Scottish equivalent of the Children Act 1989 south of the border. The Scottish Act does, in fact, have considerable similarities to the English/Welsh Act, in particular as the latter was originally enacted, but it also has significant differences.

I will start with the similarities. The Act gives the Scottish courts power to make various orders relating to children. I won’t go through them all, but they include the following four orders, which will be entirely familiar to family lawyers of my vintage south of the border:

Residence order: Described as “an order regulating the arrangements as to with whom; or if with different persons alternately or periodically, with whom during what periods, a child under the age of sixteen years is to live”.

Contact order: Described as “an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age and a person with whom the child is not, or will not be, living”.

Specific issue order: An order regulating any specific question which has arisen, or may arise, in connection with parental responsibilities, etc.

Prohibited steps order: OK, not actually called that, but described as “an interdict prohibiting the taking of any step of a kind specified in the interdict in the fulfillment of parental responsibilities or the exercise of parental rights relating to a child or in the administration of a child’s property”.

Note, of course, that while Scotland appears to have followed the 1989 reforms south of the border, it has not, yet at least, followed the 2014 reform here, which replaced residence and contact orders with ‘child arrangements orders’.

Child law in Scotland – some differences

So far, so similar. The eagle-eyed reader may, however, have noticed something about the definition of what we would call a prohibited steps order. What is all of this about “parental rights”? In England and Wales we have the concept of “parental responsibility”, but not (specifically, at least) a concept of “parental rights”. In fact, we tend to shy away from the idea, as it suggests that the rights of the parent may be more important than, or at least as important as, the welfare of the child.

“Parental responsibility” is defined quite differently in Scotland. It means (to use the wording of the Scottish Government website) “the things you must do to look after your child”, including safeguarding and promoting the child’s health, development and welfare, providing direction and guidance to the child and, interestingly, “if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis”.

“Parental rights”, meanwhile, includes being able to make choices about how the child is brought up, and where the child should live. There is some overlap in the statutory definitions of parental responsibilities and parental rights, with the latter stating that “a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right [inter alia]to have the child living with him or otherwise to regulate the child’s residence; to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing; [and] if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis”.

The acquisition of parental responsibilities and rights is similar to that of parental responsibility in England and Wales (automatically by mother, by father if married to mother, named on the birth certificate or via agreement/court order, etc.).

Making a children order

A major difference in the laws either side of the border relates to the principles that the courts must follow when deciding whether to make a children order. The welfare of the child is still paramount, but unless I am mistaken, the Scottish system does not have a ‘welfare checklist’ quite like ours. The 1995 Act does, however, state that (amongst other things) the court should have regard to the views of the child, taking account of the child’s age and maturity, with it being presumed that a child twelve years of age or more is of sufficient age and maturity to form a view.

OK, that’s as much as I intend to say here, to set out the basics of children law in Scotland. In my next post, I will look at the Scottish Government’s proposals to reform the law.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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