HM Insights

What will a new Children (Scotland) Act 2020 mean for families? Part four – Section 11 orders, Curators Ad Litem, Contempt of court, explaining decisions to children

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 two looked at how the law in relation to domestic abuse and to taking evidence from vulnerable people in child law cases might change. Part three 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.

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In this blog, we consider further proposed changes to Section 11 of the Children (Scotland) Act 1995 including a new duty on the court to explain their decisions to children.

Clarifying whether an order relates to parental rights or responsibilities

The bill proposes to confirm that any order set out in section 2 of the act in relation to:

  • depriving a person of some or all of his parental responsibilities or parental rights in relation to a child;
  • Imposing such responsibilities on a person aged 16 or over or giving them rights;
  • Regulating with whom the child lives or the arrangements for them to have contact
  • An order resolving a specific question ("specific issue order")

Will be treated as an order in relation to parental rights/responsibilities. This is simply a clarification of the current legal position.

When making an order, the bill proposes to set out a further test for the court when making an order – the Sheriff much consider the effect of an order on :

(i)    the involvement of the child’s parents in bringing the child up, and

(ii)   the child’s important relationships with other people.

This reflects a continuing understanding that there are different family units and that in modern society, many different people can have important relationships with children that should be considered when looking at what is in their best interests.

Curator Ad Litem

At present, the Court can appoint a person known as a Curator Ad Litem to a child in contested proceedings. In many cases this will happen if the Sheriff considers that a child needs independent assistance to represent their best interests – for example if the parents' interests conflict with those of the child. Their primary role is to advocate for the child's best interests. The Curator Ad Litem will often provide a written report to the court but can also become actively involved in the litigation.

The Bill proposes to regulate how these appointments will take place in future.

In cases where a Sheriff decides to appoint a Curator Ad Litem to a child/children they would have to:

  • Be satisfied that it is necessary to do so to protect the child’s interests;
  • Give reasons for the appointment;
  • Re-assess the appointment every six month and if they continue the appointment, give reasons why.

The Court will only be able to appoint a person who is included on the register which the bill proposes would be established by the Scottish Ministers (similar to the proposals re Child Welfare Reporters). The ministers would make regulations regarding training and qualifications, the process for including and removing people from the register.

Explaining court decisions to children

An important aspect of the Bill is the proposal that children will be entitled to receive an explanation of the decisions made about their lives by the Court. This reflects an evolution of society's view on children's rights and entitlements to self-determination and autonomy – all primary school children are aware, for example of their rights under the UN convention on rights of the child.

The bill proposes that, if a court decides whether or not to make an order under section 11 or to vary an order (or decline to vary it) and the court thinks it is appropriate to explain that decision to the child, then they must ensure that it is explained to the child in a way that they can understand.

The court does not have to do this if it is satisfied that:

  • The child would not be capable of understanding an explanation, however give; or
  • It is not in the child's best interests for there to be an explanation or;
  • The child's location is not known.

How will the court explain its decision?

It is proposed that the Court can either explain itself to the child – i.e. presumably the Sheriff would meet with the child to give an explanation or a Child Welfare Reporter can be appointed to undertake the task.

Sheriffs are already recognising the positive impact on future wellbeing of children in involving them in decision making processes which are about them (where it is appropriate to do so). Sheriff Anwar, of Glasgow Sheriff Court, for example, wrote a letter to a child explaining a decision she had made, in child-friendly language, and this may be a course which other Sheriffs follow.

Contempt of Court

In relation to cases where there is an alleged contempt of court by one parent failing to obey a court order, (sometimes known as "failure to obtemper"), the Bill proposes changes to the current law.

It is proposed that, if the court is being asked either to make a finding of contempt due to failure to obey; or being asked to change an existing order because of failure to obey, then if the Court is satisfied that there has been a failure to obey they must find out the reasons why.

The court is given specific power to appoint a Child Welfare Reporter to investigate and report on the circumstances of the alleged failure to obey.

Very often, contempt allegations proceed on disputed allegations from each parent – one person saying that the other has not made a child available for contact, for example, with the other either denying it or saying that they have a reasonable excuse for not obeying. The involvement of a Child Welfare Reporter in these cases may help Courts to come to a quick decision, rather than waiting for an evidential hearing during which time contact could be missed and children could be negatively impacted.

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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