On October 1, 2020, the Children (Scotland) Act 2020 was formally approved by the royal assent. The majority of the Act’s substantive provisions, which will significantly alter many areas of child law, are not yet in effect, and there is no set schedule for their implementation—aside from a few measures that went into effect right once.
1. The child’s perspective
As things stand, every child should be given the chance to say whether or not they would like to voice an opinion in court when it comes to matters about their welfare. When a youngster expresses a want to share their perspective, it is imperative to provide them the chance to do so. Although it is becoming more widely acknowledged that younger children should also be given the chance to express opinions, it has long been assumed that children who are 12 years old or older are mature enough to do so. After that, the court decides how much weight to give those opinions when taking the child’s age and maturity into account.
The 2020 Act presents the idea that all children, regardless of age, should be given the chance to express their opinions in any way that they can. Whenever possible, the youngster will choose the approach to take to share those opinions. They could talk to the sheriff or a child welfare reporter, or they could take a less formal route, like writing a letter or drawing one, or they could get access to play therapy, or they might show the court a video. If the kid does not indicate a preference about how their opinions should be gathered, or if the child’s suggested approach is not workable, the court will only decide how those views are to be obtained.
The court retains the authority to declare that a kid is too young or immature to express an opinion, and it is not permissible to force a child to express an opinion against their will. The court will still be responsible for deciding how much weight to give the child’s opinions once they are known.
2. Keeping kids safe from abuse
Currently, when the court is considering decisions regarding a child’s care or welfare, provisions under the Children (Scotland) Act 1995 address protecting children against abuse. These provisions will be removed by the 2020 Act when it takes effect, although a new part of the 1995 Act will handle the main requirements for shielding minors from abuse.
The newly added provision will uphold the precepts that the well-being of the child comes first and that the court should only become involved when required. It will continue to be acknowledged that it is preferable for matters involving children to be resolved quickly.
In situations where abuse is a contributing factor, the 2020 Act states that the ability of the individual who committed (or may commit) the abuse that impacts (or may influence) the child to provide for the kid’s needs should be taken into account. The court must also take into account the potential impact that any orders made may have on the ability of a parent with parental rights to carry out their responsibilities, as well as the potential impact that abuse may have on those who need to interact to enable the court-ordered contact (e.g. at handovers). Therefore, great thought will be given to how the abuse or danger of abuse will impact the child’s care arrangements.
It’s interesting to note that abusive behaviour is not limited to physical assault; it may also include verbal and emotional abuse, as well as simply being in a certain place.
3. Giving the child an explanation of the court’s rulings
At this point, the parties to the lawsuit—typically those with parental rights and obligations regarding the child—will receive the court’s decision once it has been made. Those individuals will then have to determine whether and how to inform the child of the court’s ruling. The 2020 Act requires that the court make sure the child is informed of its decision. This rule does not apply if the kid would not be able to understand the decision that was taken if it would not be in the child’s best interest to receive an explanation, or if it is unknown where the child is. The court itself or, if one has been designated, the child welfare reporter, may explain the decision to the kid. For both interim and final orders, this rule is applicable.
4. Section 11: Investigating noncompliance with instructions
Presently, a person attempting to enforce an order under Section 11 of the 1995 Act may ask the court to find the non-compliant party in contempt of court if the order has not been followed, such as an order dictating where the child will live and with whom or regulating contact between the child and the non-resident parent. If a person is found in contempt about civil proceedings, their punishment might include up to three months in jail and/or a fine that doesn’t go over £2,500.
The person whose favour the Section 11 order has been given is the one who must take the action for contempt through a different procedure. In reality, the person who ignores the order is typically given multiple chances to make amends and receives little more from the Sheriff or Judge than a few chiding remarks.
According to the 2020 Act, the court will have the responsibility to determine why there was a failure to comply with a Section 11 order if it is accepted that there was one. Before determining whether to punish the non-compliant party in contempt and/or to modify or revoke the earlier order, the court will be required to hear the child’s opinions.
5. Support in ensuring that kids stay in touch with their siblings
It is widely acknowledged that if siblings are unable to live together, it might be ideal for the child to continue having contact with them. As per the 2020 Act, the local authority is required to initiate measures aimed at fostering interpersonal connections and enabling face-to-face communication between siblings of a looked-after child.
Before making any decisions regarding a child they are looking after, the local authority is also required, to the extent that it is reasonably practicable, to find out the opinions of siblings and anyone else the child has lived with where the relationship has the character of a sibling relationship, such as step-siblings or foster siblings (provided that they have an ongoing relationship).
6. Vulnerable parties and witnesses in civil cases
New specific procedures to support vulnerable witnesses in family court cases are introduced by the 2020 Act. If a person is the victim or the complainant regarding crimes committed or allegedly committed by another party in the family processes, they will be considered vulnerable witnesses. The 2020 Act gives the court the authority to forbid the abuser from directly pleading in their case, which eliminates the possibility of a cross-examination of the victim or claimed victim. If someone is covered by such a restriction, they will have the option to choose their lawyer; if not, the court will choose one for them. A vulnerable witness may also benefit from other techniques, such as testifying in front of a screen, over a live television link, or with the assistance of a supporter.
7. Reporters and Curators Ad Litem for Child Welfare
A Register of Curators ad litem and a Register of Child Welfare Reporters are required by the 2020 Act. This will standardise the current system of appointing curators ad litem and child welfare reporters on a sheriffdom-by-sheriffdom basis, even though they are currently appointed by both the Court of Session and Sheriff Courts. The justification for this is that the creation of these registries will guarantee that all reporters on child welfare and curators ad litem have received adequate training. The procedure for assigning people to these positions should be consistent, and same criteria for those performing these duties should be upheld throughout Scotland.
8. Alternative Dispute Resolution
It is acknowledged that child-related problems are not always best resolved in court. Models of Alternative Dispute Resolution (ADR), such as arbitration, collaboration, and mediation, should be taken into account. If an ADR model is not used to address the issue, the 2020 Act mandates that Scottish Ministers provide funds for alternative dispute resolution (ADR) in cases where orders about children are requested or anticipated to be requested.
9. Services for Child Contact
According to the 2020 Act, contact centres must be controlled, and a court order requiring supervised or supported contact may only permit the use of licensed contact centres. A lawyer may only recommend a client to a regulated centre; if the lawyer disregards this requirement, there may be consequences such as disciplinary action.
This will guarantee that a minimal level of training has been completed by all employees running the facilities and that a minimum standard of accommodation quality is maintained.
