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.
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.
Here, we consider how the law in relation to domestic abuse and to taking evidence from vulnerable people in child law cases might change.
51% of respondents to the consultation paper agreed that provision should be made for the protection of domestic abuse victims and other vulnerable parties in hearings about children.
The Children (Scotland) Bill makes a number of proposals that would give effect to this positive response.
Does the court take domestic abuse into account when considering what is in a child's best interests?
The Bill proposes to insert a new section, 11ZA which sets out factors which the court must consider when deciding if it is better for the child to make an order than not to make one at all. Those factors include:
- the need to protect the child from abuse, or the risk of abuse, which affects, or might affect, the child,
- the effect that abuse, or the risk of abuse, might have on the child,
- the ability of a person to care for, or otherwise meet the needs of, the child, where that person has carried out, or might carry out, abuse which affects, or might affect, the child,
- the effect that abuse, or the risk of abuse, might have on the carrying out of responsibilities in connection with the welfare of the child by a person who has (or, by virtue of an order under section 11(1), would have) those responsibilities.
What constitutes "abuse"?
“abuse” includes -
- violence, harassment, threatening conduct and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress,
- abuse of a person other than the child, and
- domestic abuse,
“conduct” includes -
- speech, and
- presence in a particular place or area.
This is a restatement of the current section 7A-C of the Children (Scotland) Act 1995.
This remains important law and its continuing inclusion in the act reflects an understanding of the negative impact that abusive behaviour can have on a child's health and wellbeing.
What if I don't want to give evidence in front of my abuser?
The Bill proposes important changes to the way in which evidence is taken from vulnerable parties.
It is proposed that if the Court is considering whether to make an order under Section 11 of the Children (Scotland) Act 1995 that a person will be considered a "vulnerable witness" in the following circumstances:
- If a non-harassment order, interdict or any similar order granted by a court prohibiting conduct from one party to the other is in place; and/or
- A "relevant" offence has been committed against the person and a party to the proceedings has been convicted of committing it, and/or
- A party to the proceedings is being prosecuted for committing a relevant offence against the person. (This includes if a prosecutor has initiated proceedings which have not yet been dismissed or resulted in conviction or acquittal).
"Relevant" offences are specified in s288C(2), 288DC(1), 288E(3) of the Criminal Procedure (Scotland) Act 1995. They include offences which in the Court's view are the equivalent of these offences in England, Wales, Northern Ireland or a member state of the EU. These constitute offences which are sexual in nature.
The Bill authorises the court to include as a special measure for a vulnerable witness in a section 11 case the power to prohibit parties from conducting their own cases in person. This prohibition can apply to one or more of the parties; or to all of them. It will not prevent a party from conducting their own case until the beginning of the first hearing in the proceedings where a witness will give evidence.
If the Court decides to use this special measure it must tell the party to whom it applies that it is being applied, explain its effect and find out whether the prohibited party or parties have a solicitor.
If at any point in proceedings the court finds out that a prohibited party does not have a solicitor or does not intend to engage one then the court must appoint a solicitor to conduct the party's case. The appointed solicitor will be chosen from a register to be established. The bill makes provision for there to be a register of appropriate solicitors who have been approved by the Scottish Ministers.
The appointed solicitor's role is to ascertain and act on the instructions of the prohibited party. If that party gives no instructions or gives instructions which are "inadequate" or "perverse" then the appointed solicitor's role is to decide and to act in the prohibited party's best interests. They cannot be dismissed by the prohibited party. They can be relieved from the appointment by the court if the court is satisfied that they cannot act on instructions or in the prohibited party's best interests.
There will be a presumption that personal conduct of a case should be prohibited is the most appropriate way forward, although the court remains entitled to consider other special measures for the giving of evidence in addition to this.
The presumption can be rebutted if the court can be persuaded that applying it will give a "significant risk" of prejudice to the fairness of the proceedings or the interest of justice and that this risk significantly outweighs any risk of prejudice to the witness if the special measure were not to be applied.
In certain circumstances the court might take into account the view of the vulnerable witness if they do not want such a prohibition to apply. The court can also consider whether it would significantly prejudice the fairness of proceedings or the interests of justice to stop a party from conducting the case, although that risk must outweigh the potential prejudice to the witness.
- The court can make orders to prevent parties conducting their own cases in certain circumstances;
- This applies from the point where evidence is to be led;
- The court can appoint a solicitor to a party who is to be prevented from leading evidence;
- The court can still consider allowing the party to conduct their own case but the overarching test will be to prevent prejudice and harm to the witness.
Vulnerable witnesses in the Children's Hearing System
The bill proposes that the Court will have a duty to ascertain whether any party to the proceedings is vulnerable and intends to give evidence and/or whether either party will call a witness to give evidence who is vulnerable. This must happen before any hearing where evidence is to be heard. If this is the case, even if the solicitors involved have not considered vulnerable witness measures, the court must consider measures and has the power to make orders about how evidence is to be taken and whether there should be special measures to protect vulnerable or child witnesses.
"Special measures" for taking evidence can include:
- use of a live television link,
- use of a screen,
- use of a supporter.
When considering special measures, the following can be taken into account:
- Is attending or participating in hearings causing, or is it likely to cause, the party distress?
- Is the party’s distress likely to be reduced by the use of the special measure?
- Would the use of the special measure give rise to a significant risk of prejudice to the fairness of the proceedings or otherwise not be in the interests of justice?
Will these changes help?
These proposed changes will regulate the way in which vulnerable parents and witnesses are able to give evidence in cases involving their children. This gives families a more certain path and ensures that where domestic abuse or other types of abuse are part of the family dynamic, the court will have the power to protect witnesses and allow them to give evidence in the least traumatic way possible.
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.
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