New laws relating to children in Scotland are currently being considered by the Scottish Parliament. This followed a wide ranging consultation, which reflected on the fact that the legal and societal landscape is ever evolving and more complex and modern family arrangements are becoming the norm.
Back in May 2018, the Scottish Government launched a consultation process on possible changes to the Children (Scotland) Act 1995, and now the Children (Scotland) Bill is going through the legislative process at Holyrood.
In a series of short blogs, our Family Lawyers will consider some of the key provisions of the Bill and how those could impact on practitioners and the families that we represent.
The first of these articles considers the first section of the Bill, which deals with the issue of views of children.
The views of the child – a must have
The current legal provision in relation to views of children is set out in Section 6 of the Children (Scotland) Act 1995:
"Views of children
(1)A person shall, in reaching any major decision which involves -
(a) his fulfilling a parental responsibility or the responsibility mentioned in section 5(1) of this Act; or
(b) his exercising a parental right or giving consent by virtue of that section, have regard so far as practicable to the views (if he wishes to express them) of the child concerned, taking account of the child’s age and maturity, and to those of any other person who has parental responsibilities or parental rights in relation to the child (and wishes to express those views); and without prejudice to the generality of this subsection a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view."
One of the consultation questions was whether the presumption that a child aged 12 or older has sufficient age and maturity to form a view about issues in relation to their care and upbringing should be removed. The responses to the consultation paper did not exhibit a clear consensus on whether it should be removed.
The Bill retains the presumption, which serves as a useful benchmark.
It is, however, important to remember that it is only a presumption which will not apply in every single case. Children younger than 12 may well have sufficient maturity to understand the issues and to have a view about them. Some children 12 and over may lack the maturity to do so. Each child is unique and the question of their views should be carefully considered – and reassessed as cases progress.
The Bill proposes to add into section 6 that the person must give the child an opportunity to express their views in a manner suitable to the child and have regard to those views (taking into account age and maturity). An exception to this rule applies if the child is not capable of forming a view or cannot be located.
The views of others with parental responsibilities – another must have
In addition, and importantly, the Bill makes provision that where a person is making a major decision regarding the exercise of parental rights or the fulfilling of parental responsibility they must (so far as is practicable) have regard to the views of any other person who has parental responsibilities or rights in relation to the child.
This is a very pertinent reminder that neither parent is entitled to make unilateral decisions about important issues in a child's life without taking into account the views of the other parent (or anyone who has parental rights/responsibilities). This is not always possible, but it will be heartening for parents to see that there is a commitment in the new legislation to ensuring that each party has a voice.
Obtaining a child's view in court cases
The Bill will make similar changes to the process of obtaining a child's view in court cases.
Where a court is being asked to make an order regarding a child where the parents are in dispute (also known as a Section 11 order), they likewise must give the child the opportunity to express their views in a manner which is suitable to that child and have regard to those views, subject to the child's age and maturity. The exception is where the child is unable to form a view or cannot be located.
The Bill confirms that this does not mean that a child must be legally represented in proceedings where their view is sought if they do not want to be and reiterates the presumption that a child aged 12 or above is presumed to have sufficient maturity to form a view.
The same provisions would apply in proceedings under the Adoption and Children (Scotland) Act 2007 where the court or adoption agency is tasked with the same requirements re the obtaining of the child's views.
Likewise, in proceedings under the Children’s Hearings (Scotland) Act 2011, the children’s hearing, pre-hearing panel or the sheriff has the same obligation.
On one view, this particular part of the Bill is not particularly radical – but it brings the legislation more into line with modern thinking and case law on how children can provide their views and recognises the important role of each parent in making important decisions about their children.
You can read the second article, focuses on the issue of domestic abuse and vulnerable witnesses.
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.
- Glasgow Head Office call 0141 227 9545
- Edinburgh Office call 0131 247 2556
- Inverness & Highlands Office call 01463 795 035
- Shetland Office call 01595 480759
- Elgin Office call 01463 795 035