A look at children law north of the border, part two – proposals for reform

Children|Family Law|September 11th 2019

As I mentioned here in my post yesterday, the Scottish Government has published new legislation that aims to amend the law in Scotland relating to children. The legislation, the Children (Scotland) Bill, is part of the Scottish Government’s Family Justice Modernisation Strategy, which sets out proposals to improve the family justice system in Scotland. The Strategy results from a consultation last year on potential changes to Part 1 of the Children (Scotland) Act 1995, which I looked at here yesterday.

Now, there is a lot going on here, and I could not possibly cover all of it. I will, therefore, limit this post to those points that I think are of most interest.

Key policy aims of the Bill

The key policy aims of the Bill are to ensure that the child’s best interests are at the centre of any contact and residence case or Children’s Hearing; to ensure that the views of the child are heard; to further protect victims of domestic abuse and their children in family court proceedings; and to ensure further compliance with the principles of the United Nations Convention on the Rights of the Child in the family courts.

Amongst the specific things that the Bill will do is to remove the presumption that a child aged twelve or over is mature enough to give their views. The idea behind this is that the presumption is meaning in some circumstances that the views of younger children are not being heard. The Scottish Government states that it “believes that with the appropriate support and by offering a number of ways of communicating, children, even young children, are able to give their views on who they should live with or have contact with.” The Bill, therefore, requires decision-makers to give the child a suitable opportunity to express their views. It also requires the court to consider whether it is in the best interests of the child to receive an impartial explanation of certain decisions.

Moving on, the consultation looked at the issue of contact between children and various individuals who are important to them. This resulted in a provision in the Bill to regulate child contact centres, by (amongst other things) making provision for minimum standards to be met and for the registration of contact service providers that meet those minimum standards. Where the court makes a contact order which requires any contact to take place within Scotland at a contact centre, the court may only require that contact to take place at a contact centre operated by a regulated contact service provider.

The Bill is also interesting for what it does not include.

Firstly, the Scottish Government appears to have rejected a suggestion that the Bill introduce a presumption that children benefit from contact with their grandparents. The reasons given for this are that “the Scottish Government believes that such a provision could cut across the key principle in the legislation that the welfare of the child is the court’s paramount consideration”, and that: “In addition, making specific provision in respect of grandparents would also raise questions on whether there should be specific provision for other family members.”

Secondly, the Scottish Government also rejected calls to toughen up the rules relating to non-compliance with orders, including the option of making a breach of a contact order a criminal offence. That latter decision certainly seems right to me. The Bill does, however, include a provision that places a duty on the court to investigate the reasons for non-compliance with an order. I would have thought that the court would be doing that already.

Thirdly, the Scottish Government decided against changing the residence/contact terminology to a new term such as “child’s order”, à la England and Wales. Sensibly, the Scottish Government considered “that the terms “contact” and “residence” have been in use for some time, have gradually gained acceptance and are useful descriptors of the orders in question.”

OK, enough of the Bill (which you can find here). What about the modernisation strategy, or at least the rest of it? Well, suffice to say that we are told that: “The Scottish Government recognises that primary legislation is only part of the action necessary to improve how family justice works. This strategy sets out work that is ongoing by Scottish Government and others; work that can be done via secondary legislation or by improved guidance; areas covered by the Bill; and areas that are for longer-term work.”

For further information, you can find the strategy here.

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