Society has changed enormously since 1995 when the last major piece of legislation about children came into law in Scotland. We now have same sex marriages, laws on surrogacy and protection for cohabiting couples. The current laws on children are out of date. The government is currently progressing a new bill to bring Scottish child law into the twenty first century. The bill is in draft at the moment, but contains significant measures which, if implemented, will drastically change the current way family law is practised.

So what’s included?

Views of the child

What does little Jimmy or Jessie think? The courts have finally recognised that almost all children involved in Scottish family law disputes should be included in the process. This is a crucial part of the radical overhaul in the law.

At the moment, the law says that if a child is 12, they have to be given a chance to have their say. However, this is miles away from what the international law directs. The UN say any child who can engage with the process should have their say no matter how young.

The Scottish courts have tried to move with the times.  The rule of thumb in the Scottish courts at present is that if a child is at school their views should be taken. The views are taken for only information as the court remains the ultimate decision maker. A child might say they don’t want to see their dad but may also feel very strongly that they do not want to wear shoes in the rain, so the decision remains very much with the adults. The weight given to the views of a five year old in the first term of primary school will be very different to a child in the third year of high school. This will be for the court to decide. The mechanism for doing this is a Form F9 (see our previous blog) or by using a Child Welfare Reporter.

The new bill should take this further by removing the arbitrary age of 12 and making it clear all children should have an opportunity to be heard. The bill also provides that the decision of the court should be explained to the child by the court or a court official. Given that the child otherwise learns about the outcome of court from either a disappointed or delighted parent (or is utterly bewildered by versions from both), this is likely to have a very positive impact. Research has shown that children feel frustrated from a lack of active involvement in the court process, and this measure might help to change that.

Technology

In a world gripped by the COVID-19 coronavirus, technology is now more important than ever. With the current guidance to work from home affecting a vast majority of work places, there has been an explosion of use of video-calling technology. It may be that we never go back to face-to-face meetings the same way as we did as recently as a month ago.

The courts are currently still open (as at publishing!) but rumours are circulating. Public access may be restricted and there might be movement towards telephone or even video conferencing.

The new bill envisages measures such as live-links into court. The technology does, to an extent, exist in courts. In practice it is very rarely used. A straw poll of this office has only seen one solicitor experience live link. With specific provision being proposed in law for live-link to be an option in child-related proceedings, this could be a huge advantage to people who use the courts. A common complaint about court is it is slow. Waiting around for each case to call is very inconvenient. If parties could access the court through remote video this would significantly improve the accessibility of the current system. Given that the courts still regularly rely on fax machines this is a huge step in the right direction. However, it is likely that the current investment in technology is going to need to be radically increased before it becomes the norm to appear virtually in your local sheriff court.

The future?

The bill has been well received by children’s charities however it is only at stage 1 of the legislative process.  The end product is hard to envisage as changes are likely to take place as the bill is scrutinised by parliament. It may also be impacted by the current pandemic crisis which might have further reaching changes than any of us could have anticipated.  We will be paying close attention to the final end product and we will keep you updated on how this might impact individual cases.