The Importance of Children’s Views in Family Actions

Children (Scotland) Act 2020

The Scottish Parliament passed the Children (Scotland) Act 2020 in August 2020. Amongst other things, this made changes to the current legislation (Children (Scotland) Act 1995), which governs contact and residence disputes in the Sheriff Court in relation to children under 16 years old. While the majority of the 1995 remains, the Children (Scotland) Act 2020 aimed to make the current legislation more compatible with the United Nations Convention on the Rights of the Child (UNCRC) in family court cases. 

The new Act covers lots of different things. In relation to contact and residence disputes, it:

• encourages hearing the views of younger children;
• ensures that children have access and support from advocacy services;
• requires the court to explain their decision and reasons for that decision to the children affected by it;
• introduces regulation of child contact centres. These are places where parents can be asked to go and have contact with their children under supervised or supported conditions.

The 2020 Act removes the presumption contained within the 1995 Act that only children aged 12 and over are mature enough to give their views. It had been observed that this presumption was leading, in some circumstances, to the views of a child under 12 not being taken into consideration. This is instead replaced with the presumption that all children are capable of giving their views, except in exceptional circumstances. The new legislation requires the courts to give a child the opportunity to express their views in a manner suitable to the child. This includes seeking the preferences of the child on how they wish to give their views. Children are invited to give their views in whichever manner the child prefers, this could be via drawings, video presentation, letter writing or play therapy, as just some examples.

In order to provide support to children throughout the court process, the Scottish Government are required to set up advocacy services for children who are giving their views to courts in family proceedings. Advocacy workers will support and represent children when courts are deciding, for example, where they should live and what contact they should have.

Once the court has made a decision in relation to a child, it is now required to communicate its decision to the child in a way they can understand. The Sheriff may explain the decision to the child face-to-face, electronically, in writing or they may also request that a Child Welfare Reporter explain the decision. Not all decisions need to be explained as there are often a number of Child Welfare Hearings in an action, which may only be procedural. If a decision is simply to postpone a hearing for a short period of time, this decision will not need to be explained. It may however, be necessary to explain a decision that is not a final decision if it is likely to have an impact on a child.

The Act also includes provisions regulating child contact centres to ensure that they are safe locations for children and adults to have contact. Contact centres require to adhere to rules and procedures and undergo risk assessments to ensure that they are fit for purpose.

The changes introduced by the Children (Scotland) Act 2020 are not limited to those discussed above. If you require any advice regarding issues raised, then please contact a member of the Livingstone Brown Family Team who will be happy to assist.