28 Aug 2020
The law of Scotland relating to children has been enshrined in legislation dating back 25 years. However the Children (Scotland) Bill, which passed its first stage in the Scottish Parliament unanimously on 25th August 2020, is set to make a raft of changes.
Tom Main, a Solicitor within our Family Law team in Aberdeen, looks at some of the key changes set to be implemented when the Bill comes into force and the impact these are likely to have.
As it stands, in an action relating to parental responsibilities and parental rights, a Court may make an Order for a child to have supervised or supported contact with a parent at a contact centre of their choosing for a specified number of visits. The contact centres local to a Sheriffdom are often well known to the judges. However, the new legislation will require a child contact centre to be a ‘regulated centre’.
The effect of this change will be that minimum standards will have to be met by the contact centre, both in terms of staff training and accommodation. The new legislation will also provide the Scottish Ministers with the power to create a regulatory body to inspect the contact centres, both prior to them being registered as a regulated centre and also on a continuing basis. Furthermore, the Courts will be unable to make an Order for contact to take place at a contact centre unless it is on the approved registered list of contact centres and meets all of the required standards.
This is likely to be one of the biggest changes from this future Act, which will influence cases involving children. The legislation, once it comes into force, will remove the presumption that a child aged twelve or over is considered sufficiently mature to be capable of giving their views. The change will mean that the decision makers, whether that be the judges or, the panel at a Children’s Hearing, must give the child an opportunity to express their views, in a manner appropriate to the child’s age, on any of the key decisions that may affect them, such as with whom they live or how often they have contact with a parent. This moves away from the current Form F9, which is the current Court approved format that allows children to currently submit their views via, and will bring in opportunities for children to write letters or even draw pictures to express their thoughts. This apparently small change will in fact be rather more significant than it first appears, insofar as there will no longer be such a strict format in which children must submit their views through. Rather, they will be able to express them in a way they are comfortable with and this can only allow a better insight into the children’s true views, rather than the limited questions they currently have to answer. The move away from the age restriction will also allow children who were previously not afforded the opportunity, the entitlement to express their views.
It is important to note at this stage that the legislation does still afford discretion to the decision maker. Once the views of the child or children have been obtained, the decision maker must have regard to these views but must do that whilst also taking account of the child’s age and maturity.
This Act will also regulate Child Welfare Reporters (CWRs) and Curators in that a register for approved CWRs or Curators that can be appointed by the Court will be established. Similar to that of the contact centre, a body will be set up to maintain the register and ensure that all registered CWRs and Curators continue to meet the required standards. The approved body will also be able to remove individuals from the register if required and deal with any complaints. The approved body will also regulate the fee charged by a CWR or Curator.
When the Act comes into force it will also bring along with it some other changes, such as clarifying the order-making power of the Court as it relates to parental responsibilities and rights, appeals under Children Hearings (Scotland) Act 2011 and also the factors to be considered before an Order is made.