With the Children (Scotland) Act 2020 on the books, Amanda Masson and Christopher Agnew look at some landmark cases for developments under the 1995 Act and highlight some areas in which the new Act takes the law forward.
As practitioners begin to work with the Children (Scotland) Act 2020, now is a good time to reflect on how child law has developed over the last 25 years, and to consider what further developments may be in store.
The law of parent and child is a specialist area in itself, with some areas within that specialism being worthy of an article of their own. This article cannot do justice to all significant developments in the area, but what we hope to do is highlight a few of the key cases which have shaped child law during the lifetime of the Children (Scotland) Act 1995. We apologise in advance if anyone’s favourite case has been missed out of this mixed bag!
The 1995 Act: The underlying jurisprudence
An apposite place to start is with the dictum of Lord Clyde in Sanderson v McManus, 1997 SC (HL) 55: “The development of the law relating to parents and children in Scots law over the last hundred years has seen a movement away from a consideration of the rights of parents to the custody of or access to their children to a recognition that priority has to be given to the interests and welfare of the child.”
In setting out a framework of parental responsibilities and rights in which the exercise of rights is possible only to enable a parent to fulfil his or her parental responsibilities, we see a shift away from the notion of children as somehow being possessions owned by their parents. The notion of the child’s views having importance is a cornerstone of the 1995 Act, emphasising the regarding of children as autonomous beings in their own right.
Sanderson v McManus (1997): parental rights or interests of the child?
S was an unmarried father. He had no parental rights and responsibilities, the child having been born before the Family Law (Scotland) Act 2006. The appeal centred on the decision to terminate contact between S and his son, interim contact having previously operated.
There are two strands running through the decisions in each of the lower courts, and in the House of Lords:
- the admissibility of hearsay evidence from the child, and whether this was appropriate;
- the importance of the application of the“welfare principle” when determining what is in a child’s best interests.
The appeals were unsuccessful. The fatal flaw in S’s case was summarised by Lord Hope when he said: “The sheriff said that he had the impression that the pursuer was thinking in terms of his own rights as the child’s natural father, rather than what was best for the child. It is implicit in his criticism of the pursuer and his whole approach to the case that he understood that the point of the pursuer’s application was his wish as the child’s father to preserve the natural link. The issues to which the sheriff and in his turn the sheriff principal directed their attention were the issues that related to the fundamental question as to whether it was in the best interests of the child that access should be allowed in order that this link should continue.”
The decision by the appellate court solidifies the concept of the “best interests” test. It considers the terms of s 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986, and undertakes an analysis of the considerations the court must have when dealing with cases involving children. In addition, it adheres to the decision of Porchetta v Porchetta 1986 SLT 105 in so far as it departs from the common law presumption that a father has a right to access with his child. The “paramount consideration” must be the welfare of the child.
We see a move away from the traditional notion that the natural link between a parent and a child must be preserved, to a more child-centric view of what is in their best interests, having regard to their welfare as a paramount consideration.
T, Petitioner 1997 SLT 724: is sexual orientation relevant to adoption?
T was an unmarried man, who was in a stable same-sex relationship with his partner, and had been for a period of approximately 10 years. He sought to adopt the child S. Despite there being no information before the court which was unsupportive of the petition, the sheriff refused to make a decision regarding the unopposed petition, instead choosing to remit it to the Court of Session.
The Lord Ordinary refused to grant the petition on the basis that: “It had not been demonstrated that the natural mother, who had refused to become involved in any aspect of the process, had withheld her consent unreasonably; and that the application raised a fundamental question of principle as to whether the courts ought to sanction adoption where it was expressly proposed that the child be brought up by an applicant living in a homosexual relationship.”
The Inner House was critical of the Lord Ordinary. With reference to the mother’s refusal to engage in the court process or to provide express consent to the petition, the court had to undertake an objective test and consider whether a reasonable parent would refuse to provide such consent in all the circumstances. In the event that it was deemed that consent was being withheld unreasonably, it was for the court to exercise its powers and dispense with parental consent, the same being in the best interests of the child.
With reference to the “fundamental question of principle” concerning a homosexual person seeking an order for adoption, it was determined by the court that there was no such fundamental principle. In addressing that proposition, Lord Hope states: “There can be no more fundamental principle in adoption cases than that it is the duty of the court to safeguard and promote the welfare of the child.
Issues relating to the sexual orientation, lifestyle, race, religion or other characteristics of the parties involved must of course be taken into account as part of the circumstances. But they cannot be allowed to prevail over what is in the best interests of the child. The suggestion that it is a fundamental objection to an adoption that the proposed adopter is living with another in a homosexual relationship finds no expression in the language of the statute.”
The reclaiming motion was granted and the order for adoption was made in this case. The petitioner’s sexual orientation was neither a barrier nor a relevant factor. What mattered was his ability to care for the child.
Shields v Shields 2002 Fam LR 37 (IH): The significance of the child’s view
This case centred on the issue of the child’s view in s 11 proceedings. The court is obliged, having regard to the child’s age and maturity, so far as is practicable to give the child an opportunity to indicate whether they wish to express a view and if the child does so wish, to give the opportunity to do so and then have regard to any views which the child does express.
The method adopted for ascertaining the child’s view is a matter of practicality, to be determined by the court. The duty applies at the date any order is made. The failure to give a child the opportunity to express a view at the time an order is made may result in an appeal.
NJDB v JEG  UKSC 21: keeping it brief
It seemed remarkable that a case such as this came to the attention of the Supreme Court at all. The original proof in this contact case ran to 52 days of evidence, taking over a year to complete. The Supreme Court took the opportunity to comment on the manner in which child law cases were dealt with in Scotland.
The case was about whether it was in the best interests of a child to have contact with his father. Proceedings were initially raised in 2003, when the child was three years old. By the time of the Supreme Court judgment, the child was 12. A curator was appointed to the child. The curator entered the process. The pleadings were extensive. Amid all the pleading and procedure, no contact was being exercised.
The system of written pleadings was the subject of comment. The Lord President observed: “It might be that the liberty which professional advisers enjoy in this field should be curtailed”. Lord Reed endorsed the Lord President’s remarks by stressing “the duty of counsel and other professional advisers to concentrate on the issue, namely the welfare of the child, rather than exploring every byway in the relationship between the parents”.
This decision also offered food for thought to those of us appointed to act as reporters and curators. It seems appropriate and potentially helpful for practitioners to invite the sheriff to clarify the envisaged role of the reporter or curator in individual cases. Specific direction to restrict the scope of a report to the views of a child could potentially avoid an exacerbation of tensions between parents by avoiding lengthy narratives about “the byways”.
SM v CM  CSIH 65: children before parents
Solicitors advising clients on child relocation cases typically followed a journey through the classic English decision of Poel v Poel  1 WLR 1469, arriving at the list of factors to be considered as elucidated in M v M 2008 Fam LR 90, and calling in on the English case of Payne v Payne  2 WLR 1826 along the way.
Conventional wisdom suggested that the resident parent’s wishes and wellbeing held significant weight, and that if he or she could paint a convincing picture detailing what the child’s life would look like post-relocation, the prospects of success were positive.
The background to SM v CM was not terribly unusual. Mr M sought to prevent Mrs M from moving to Berkshire, the desire to relocate being motivated by the fact that she had a new partner whose family and business were based there.
The Inner House held that the sheriff and sheriff principal had erred by applying the general guidance affirmed by the Court of Appeal in Payne. One need look no further than the legislation and authority which has emerged from within Scotland.
This case clearly disassociated Scots law from the English jurisprudence on relocation, underlining that Scots law contains no presumption, rule or principle in favour of the rights and interests of either parent being allowed to distort or override the court’s judgment as to where the welfare and best interests of the children lie.
Patrick v Patrick 2017 Fam LR 128
We have different mechanisms by which a child’s view can be taken. In many cases, when an order is issued on an interim basis or by extract decree, a child may or may not have an understanding about the judge or sheriff who made the decision about them, or their reason for doing so. Legal professionals in a case may never know what has been communicated to a child about why a decision was made, arguably leaving a child in limbo, possibly wondering whether or not they have said “the right thing”.
Sheriff Aisha Y Anwar demonstrated a willingness to take a step further than the norm in this case. It was determined to be in the best interests of the children that they had a relationship with the pursuer, and an award of indirect contact was made. In her decision, the sheriff explained that she regarded it as important that the pursuer engage with professionals to address his poor parenting decisions and that the parties give consideration to counselling and mediation.
She did not issue a detailed judgment, in light of concerns that selected content might be released in future by either party to the children, which would be contrary to their shorter and longer-term best interests. The parties had agreed that the pursuer would undertake the Triple P parenting course, that a psychologist would be instructed by both parties to work with the children to assist them to develop a relationship with the pursuer, and that the parties would work with family therapists in advance of mediation and thereafter attend mediation. A detailed and comprehensive plan was in place.
Dr Khan offered the opinion that the court’s decision would best be communicated to the children by the court, as opposed to either of the parents. Sheriff Anwar decided to write to the children, after review (without amendments) by Dr Khan to ensure that no further distress would be caused. As Dr Khan had been working with the children, it was agreed that she would read the content of the letter to the children. The letter was addressed to the two eldest children, discretion being left to Dr Khan on whether it should also be read to the youngest.
Such an approach may offer a child a ray of light in what is likely to be a confusing situation, particularly where acrimony is high. At the very least, the children will be better able to put things in context in a way they can understand. The letter makes it clear that the decision was taken despite their view, but that their view was heard, respected and understood. The burden of decision making rests firmly on the sheriff’s shoulders. Arguably the letter to the children may have shifted any perceived burden felt by the children.
This decision shows a proactive move from the bench in conveying its decisions to the children.
The decision does, however, also highlight the differing approaches taken in such actions. Some sheriffs may be keen to meet with children directly during the course of proceedings, while others may be reluctant to do so. This may be due to differing levels of expertise in the family law forum, and levels of experience interviewing children and ascertaining their views. The common thread running through all of the cases above is a child-centric one.
Looking to the future
The Children (Scotland) Act 2020 was passed by the Scottish Parliament on 25 August 2020.
One aim of the Act is to ensure compliance with the United Nations Convention on the Rights of the Child (UNCRC) in family court cases. The ethos of UNCRC is to ensure that the welfare of children is placed front and centre when adults are considering what is in their best interests, or making decisions about their care and upbringing.
The 2020 Act galvanises the provisions already in place both in the Children (Scotland) Act 1995 and the Children’s Hearings (Scotland) Act 2011. It continues to follow the well-known provisions of s 11 of the 1995 Act. The concepts of the welfare test and best interests pertain.
The key changes include:
- Removal of the presumption that a child under 12 years old will not have sufficient maturity to provide their views, in favour of a positive presumption that a child is able to provide their views. There is an obligation on the person seeking the views of a child to ensure that that child may express their views “in a manner that the child prefers”. This provision opens up the possibility of a child giving their views in ways other than a traditional interview. To accommodate, courts (and the Scottish Children’s Reporter Administration) have introduced new forms which allow for a child’s views to be expressed in a manner suitable to them.
- An onus placed on the court by s 8, actively to consider any measures which may be necessary for the protection of vulnerable parties in court cases about children, with case management powers to the sheriff which allow the imposition of “special measures” without application from the parties to the case.
- In addition, a prohibition on the conduct of a case by an unrepresented party about whom allegations of domestic violence, sexual offences or forced marriage are made.
- Creation of a register of those who may be appointed to safeguard a child’s interests at court – a child welfare reporter. Regulations shall be forthcoming from the Scottish ministers setting out requirements for training and qualification for those on the list, as well as a process by which a person may be removed from the list.
- Provision, in s 10, for “regulated” child contact centres, which like the regulation of child welfare reporters, ensures that child contact centres meet prescribed minimum standards, and that staff are suitably qualified, undertake relevant training and ensure minimum standards are maintained in the provision of care when a child uses their service.
- A positive obligation, in ss 13 and 14 to ensure ongoing contact is considered between siblings who do not reside together, or where one or more siblings is subject to an order in terms of the 2011 Act. This is a positive obligation and will ensure that children have a right to maintain personal relations with their siblings, even if they are not the subject of the current proceedings.
What the 2020 Act did not do was introduce a presumption in favour of shared care, something which many practitioners and organisations feel amounts to a missed opportunity. The Act does not have any effect on the area of parental rights and responsibilities in the context of family creation via assisted reproduction techniques, or surrogacy, areas which are governed by separate pieces of legislation, which may be subject to reform in the not too distant future.
We have come an awfully long way since T Petitioner, but arguably have a long way to go if we are to keep pace with the ever-evolving makeup of family structures in Scotland.
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