HM Insights

What will a new Children (Scotland) Act 2020 mean for families? Part five – What does the Bill NOT cover, and miscellaneous provisions

Part one of our series of blogs considered potential changes to the law relating to how the views of children might be taken in disputed proceedings. Part 2 looked at how the law in relation to domestic abuse and to taking evidence from vulnerable people in child law cases might change. Part 3 proposed changes to how child welfare reporters are appointed and how child contact centres might be regulated and changes to the duty upon the local authority in relation to looked after children. Part 4 discussed changes including a new duty on the court to explain their decisions to children.

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The final part of this series will briefly cover further proposals on miscellaneous revisals and conclude by asking – what does the Bill NOT cover?

Appeal against relevant person decision

The Bill proposes to change the Children's Hearings (Scotland) Act 2011.  If a sheriff is dealing with an appeal deeming a person as relevant in relation to a child, he must make a specific determination that they are either not to be deemed as relevant or no longer to be deemed as relevant depending on the procedure involved. 

In relation to further appeals against a relevant person decision made by a sheriff, the wording is clarified to confirm that it relates the deeming or otherwise of a person as relevant.  The Bill also clarifies that the principal reporter cannot appeal against a decision by a sheriff confirming a determination of a Children's Panel. 

The Bill proposes that changes are made to update the Act to remove reference to the Sheriff Principal as the correct method is now via the Sheriff Appeal Court. 

The Sheriff Appeal Court or Court of Session will only grant permission to appeal if the appeal raises an important point of principle or practice or there is another compelling reason for the Court of Session to hear the appeal.  This brings the rules into line with other civil appeals.

Miscellaneous Provisions

Parental rights and responsibilities for foreign registered births

The Bill proposes to modify the Children (Scotland) Act 1995 so that provisions can be made to confer parental rights and responsibilities upon a father or a second female parent who has not acquired rights and responsibilities under other sections of the Act.  Those regulations will only make provision for conferral of rights and responsibilities where :

  • the child's birth is registered outwith the UK,
  • the person acquired parent duties, rights or responsibilities through a process specified in the regulations and the mother of the child to have consented to the acquisition of those duties, rights or responsibilities.

It is likely therefore that there may still be disputes for children whose births were registered abroad where the mother refuses to agree. 

Jurisdiction of the Sheriff court – "special Scottish Rule"

The Bill also proposes to extend enforcement powers under the Family Law 1986 to the Sheriff Court by applying a special Scottish rule that an order registered in the Court of Session under Section 27 will be regarded as registered under that section in every Sheriff Court.  A sheriff will be allowed to entertain an application for the enforcement of a Part I order if the sheriff would have had jurisdiction under Chapter [III] of the Act. 

Delay in proceedings prejudicial to child's welfare

Lastly, the miscellaneous provisions seek to insert a specific reference that the court must consider the risk of prejudice to a child's welfare that delay in proceedings would pose.  That will apply across both the Children's (Scotland) Act, the Adoption and Children (Scotland) Act and the Children's Hearing (Scotland) Act 2011. 

Does the Children (Scotland) Act 2020 miss anything out?

The Bill is fairly wide-ranging and technical on a number of points.

There are however some areas where, despite positive responses to the consultation paper, the Bill makes no proposals. These include:

Should there be a presumption in Scottish law that shared care is in the best interests of a child?

50% of respondents to the consultation paper agreed that there should be a presumption in law that a child benefits from both parents being involved in their lives. (The mirror question "should there be no presumption in law that a child benefits from both parents being involved in their lives?" obtained a 52% negative response).  We now have the benefit of research that supports the hypothesis that shared care does produce tangible benefits for children. It is clear that those who engaged with the process prioritised the importance of a child having both parents involved in its life, unless there was good reason why that should not happen.  Such a presumption would certainly allow both parents to feel as though they are litigating on an even playing field and would ensure that, when making decisions which would go against the presumption, reason must be given as to why.

Should there be a presumption in Scottish law that it is in a child's best interests to have contact with its grandparents?

45% of respondents to the consultation paper said there should be presumption in law that children benefit from contact with their grandparents. 40% considered that there should be no such presumption.  This is a fairly even split. There is an argument that the individual test applied in each case, i.e.  – what is in the best interests of the particular child involved, allows the Court to fully consider whether it is best that the child should have contact with grandparents. There may be a concern that including this presumption could increase the amount of people arguing about what is best for the child, but failure to include a positive presumption may be disappointing for advocates of "grandparent's rights".

Should someone be forced to undergo DNA testing in a case where parentage is in dispute?

46% of respondents to the consultation agreed that DNA testing should be compulsory in parentage disputes with 19% saying no and 35% no response.  A recent decision of the European Court of Human Rights (Mifsud v Malta) concluded that the use of compulsory DNA testing was not a breach of convention rights so long as certain safeguards were in place and it appears that this would be supported by a number of the respondents to the consultation paper.  For many children, the failure to include provision in any new law that alleged parents can be compelled to submit to DNA testing, which is non-invasive and certain to a high degree, will lead to continued uncertainty for them.

The Bill remains in progress through parliament, so the final shape that the Children (Scotland) Act 2020 will take is not yet final. While many important areas of regulation are dealt with, it is likely that critics will point to the fact that the Bill does not tackle thorny issues such as DNA testing and a "shared care" presumption" as a failure to fully implement key issues from the consultation paper. 

Children (Scotland) Act 2020 Blog Series

In case you missed any of the other parts of the blog you can view them using the links below. 

Part 1 - What will a new Children (Scotland) Act 2020 mean for families?

Part 2 - Domestic abuse and vulnerable witnesses

Part 3 - Child Welfare Reporters, contact centres & contact between looked after children & their siblings

Part 4 - Section 11 orders, Curators Ad Litem, Contempt of court, explaining decisions to children

Part 5 - What does the Bill NOT cover, and miscellaneous provisions

Get in touch

If you are affected by any of the issues above and would like to discuss your situation with a member of our team, please get in touch.

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