Following much discussion, debate and consultation with the legal profession, parliament finalised the terms of the long-awaited Children (Scotland) Act 2020 on 25 August 2020. The new legislation amends the Children (Scotland) Act 1995 which has governed child care arrangements for decades. Amendment has been considered necessary due to changing household structures and evolving court processes. But what does the Act mean for those who are a party in a court action involving the welfare of children?

Children’s views at the centre of proceedings

The 2020 Act aims to place children at the very heart of proceedings which relate to them. The primary aim of the legislation is to ensure optimum compliance with the United Nations Convention on the Rights of the Child in family court cases. Prior to the 2020 Act, it was presumed that children aged 12 or older were of sufficient age and maturity to give a view in relation to court proceedings which relate to them. In practice, particularly over recent years, the courts have sought to obtain the views of much younger children. The 2020 Act removes any age presumption in relation to a child’s ability to give a view. It is presumably hoped that this will encourage decision makers to be proactive in finding innovative and child-centred ways to ensure children’s views are taken impartially and in a way that is best for the child. In fact, the 2020 Act requires the court to give the child an opportunity to express a view in a manner which that child prefers.

In practice, a child may not know how they wish to give a view to the court. It will therefore fall to parties to consider with their solicitor, and with the approval of the court, as to the best way to obtain their children’s views. This will be particular to each case and to each child. Methods of obtaining children’s views can vary, but can include the appointment of a child welfare reporter, through play therapy, drawing or writing a letter or even the child having an informal chat with the decision maker. You should contact Johnson Legal to discuss and consider what might be best for your case and your children.

Regulation of child welfare reporters & curators ad litem

The appointment of child welfare reporters and curators ad litem to take children’s views is a long-established practice in many courts across Scotland. However, the 2020 Act attempts to impose more regulation in the training, selection and management of persons in such a role. Quite how this will work in practice is uncertain at present, but it would seem the role of child welfare reporter and curator ad litem will become far more regulated under the new structure.

Children’s awareness of decisions

Under current legislation, any decision by the court relating to care arrangements is left to the parties of the action to communicate to the child. This can be difficult and often leave parties in a very challenging position when faced with explaining a decision someone else has made in relation to a child in their care. Under the 2020 Act, there is an obligation on the court to communicate its decision to the child itself, again in a way which is appropriate and child-centred. The court must ensure that the decision is explained to the child concerned in a way that the child can understand. This can be done either by the court or be delegated to an appointed child welfare reporter if more appropriate. There is no prescriptive way in which this is expected to be done. Again, courts will be entrusted to find unique and innovative ways to fulfil this duty in order to ensure the best interests of the child are prioritised.

Regulation of contact centres

Contact centres are frequently named as venues for contact within court orders. The 2020 Act is the first attempt to regulate and standardise contact centres throughout Scotland to ensure centres meet a minimum standard. The new legislation will require contact centres to comply with a regulatory framework which narrates training, qualification and accommodation standards which each registered centre will require to meet. It is not yet clear how this will impact centres currently in operation, many of which are currently closed or limited in operation due to the coronavirus restrictions.

Protecting parties in difficult cases

A large number of cases regarding child welfare involve parties who may find the court setting difficult due to previous experiences. The 2020 Act attempts to make court a less intimidating environment for persons who may be considered vulnerable in the court environment. There are greater protections for persons who require to give evidence in a case who have been the victim of an offence, domestic violence or forced marriage. In addition, in certain cases the court can now prohibit certain persons from conducting their own case if the court feels it is appropriate to do so. In such circumstances, the court is able to appoint a solicitor for a party who is not permitted to represent themselves in relevant proceedings. There will be a regulated register of solicitors who are able to be appointed to take on this role.

Small change or dramatic overhaul?

The 2020 Act has taken around one year to pass through all the legislative stages of the Scottish Parliament. At its introduction, many stakeholders sought significant change to the current system and have since argued that the Act does not go far enough to reflect modern attitudes to child welfare. The Act did not, for example, impose a duty on the court to default to a position of shared-parenting upon separation – something which some parenting groups argued for.

Despite the lack of headline-hitting changes, the obligations the 2020 Act imposes on courts in relation to making proceedings more child-centred should not be underestimated. The Act means that children’s views will play a central role in proceedings, where appropriate. To find out how this may impact your case, contact Johnson Legal on 0131 622 8477 for informed advice relating to the new changes.