HM Insights

What will the Children (Scotland) Bill mean for family court cases regarding contact and residence?

The Children (Scotland) Bill was passed by the Scottish Parliament on 25 August 2020. Here, Charles Brown, a Partner in the Family Law team at Harper Macleod, has a look at the main aspects of the Bill.

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Why the Bill was created

The Bill aims to comply with the United Nations Convention on the Rights of the Child (UNCRC) in family court cases. The UNCRC states that adults should consider the best interests of children and young people when making choices which affect them. This means that adults should:

  • Think about what is best for children and young people in their day to day lives when making decisions
  • Make sure children and young people are cared for
  • Make sure that groups who protect and care for children and young people are good at what they do

Overview

The Bill changes the law to improve the court process in contact and residence cases. Contact and residence cases decide where children should live and arrangements for seeing them. The Bill also covers changes to aspects of the Children's Hearing system.

Proposed changes

The changes proposed by the Bill include:

  • Encouraging hearing the views of younger children
  • Protecting vulnerable witnesses in court cases about children
  • Providing further protection for victims of domestic abuse and their children
  • Recognising parental rights and responsibilities obtained outwith the UK
  • Regulating child contact centres
  • Setting up registers of people who can be appointed to safeguard the interests of a child at court, including child welfare reporters.
  • Aiming to promote contact between looked after children and siblings

Until the Bill was passed, it was presumed that children aged 12 or older should be able to express a view in residence and contact cases. In practice, particularly over recent years, the views of younger children have also been established by courts. The Bill removes the age limit. The court should also aim to use a child's preferred method of giving their views and explain decisions in ways the child can understand.

In relation to vulnerable witnesses, the court and solicitors involved in cases relating to children are now required to consider more thoroughly whether protective measures are required for any potentially vulnerable witnesses. That could, for example, include giving evidence by way of video link. A vulnerable witness application could previously be made to the court, but that is now no longer required and must be considered by the court.

Child contact centres provide services for children to have contact with family members and parents they do not live with. Child contact centres can offer contact on a supported or supervised basis, if required. Child contact centres will now have to meet minimum accommodation and staff training standards.

Child welfare reporters are people who are appointed by the court to seek the views of children or undertake other enquiries and make reports to the courts. Child welfare reporters are usually solicitors. Liam McArthur, MSP, had proposed an amendment to the Bill requiring child welfare reporters to be trained social workers. This tends to be the situation in the other countries in the United Kingdom. However, this amendment was dropped. It is anticipated the child welfare reporters will require to receive training and further details of that will be produced in due course.

The Bill also aims to promote contact between looked-after children and siblings. A looked-after child is a child who is accommodated by the local authority for one reason or another, often with foster carers. It is sometimes the case that siblings are separated in such situations and often lose contact with each other. It is encouraging that the Scottish Parliament has recognised this and steps are being taken to promote contact between siblings in such situations.

Get in touch

If you need support to pursue residence of or contact with your child, you should contact us immediately. We have a number of family law and child law specialists who can assist you and advise you further.

The family team at Harper Macleod are well versed in all aspects of family law, including divorceseparation, financial provision, child contact and residence, child relocationprotective orders and domestic abuseadoptionsurrogacy, and fertility law. Many of our team are trained in various methods of dispute resolution, including mediation and collaborative practice, and are Accredited by the Law Society of Scotland as specialists in their field. Head of Family Law Amanda Masson holds the COSCA qualification in Counselling Skills.

For more information on our family law services call our offices or complete our simple online form, for an initial discussion or to request a callback. 

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