Noel Ferry

The Children (Scotland) Bill has been passed by the Scottish Parliament, ushering in a number of significant changes to Scottish family law.

Many of the new measures are necessary and welcome - updating procedures to reflect the complexities and realities of modern family situations and to protect the interests of children and ensure their voices are heard.

But in some areas, the bill has missed important opportunities to bring the nation’s family law fully up-to-speed with the realities of contemporary Scottish society and family life.

What are some of the most significant changes introduced by the legislation? What could their wider implications be, and where might the bill have gone further?

Respecting children’s views

One of the bill’s headline measures is the requirement that courts should, where practicable, allow a child to use their preferred method to express their views in proceedings and take steps to explain court decisions to children in ways they can understand.

While a handful of Sheriffs had already started to explain their decisions to children in some of their judgments, approaches like these were considered to be ground-breaking. These new stipulations will expand this practice, and are a welcome step forward – cementing the child’s rightful place at the heart of proceedings, and cementing a respect for their autonomy.

Here, extra training will undoubtedly be required to help judges successfully, and consistently, communicate what could be highly emotional decisions in a child-friendly way.

This could be costly, and, in the short term, add extra pressure on a judiciary already facing a significant case backlog due to the coronavirus outbreak. But in the long-run it is likely to pay significant dividends – creating a system where at least some clarity is available for children in what can be a very uncertain and confusing set of a circumstances.

Strengthening standards

Throughout its text, the bill includes a number of measures that will serve to strengthen the standards of family processes and procedures which already exist within the Scottish family law system.

One such change is the stipulation that child welfare reporters – individuals, usually solicitors, appointed by a court to gather information to aid a court’s decisions about a child – must now be on a newly established register before being appointed by the Courts. Up until now each court had their own list of local reporters with no set criteria for inclusion.

The Children (Scotland) Bill paves the way for ministers to set standards for individuals in reporting roles, including around training, or certain qualifications.

There had already been a move by the Family Law association to provide extra training for reporting roles, which can, by their very nature, involve dealing with highly emotional and sensitive topics.

But while it remains to be seen what the precise standards will be, their introduction will presumably lead to a more robust and transparent reporting process, ultimately strengthening the court’s ability to make decisions with a child’s best interests at heart.

In addition to stipulations on welfare reports and curators, the bill now enables ministers to set regulations for contact centres – facilities where parents and their children can interact in a safe and neutral setting.

The vast majority of child contact centres are already well-run, but sometimes they rely on volunteers as much as paid staff. These new guidelines will pave the way for a national framework to standardise their approach, for example in areas such as the qualification and training of staff.

One indirect implication of this, however, could be a rise in the cost of families accessing contact centre services, often at times when financial hardship is at its worst.

The financial outlay required to meet the new standards, for example by paying for staff training, may mean centres raise the prices for their services, therefore becoming less accessible at times when they are most needed.

Recognising the importance of sibling relationships

The Children (Scotland) Bill enshrines a heightened awareness of the variety of stabilising influences and significant relationships in a child’s life, specifically through stipulations around a child’s relationship with their siblings.

Under section 17 of the Children (Scotland) Act 1995, local authorities caring for a child must now take steps to promote contact between siblings and those that have a relationship akin to siblings. This expands an existing responsibility to promote contact with those who have ‘parental responsibilities’.

On top of this, the bill introduces what the government has described as a ‘new participation scheme’ that will pave the way for siblings of individuals to be admitted as ‘relevant persons’ in children’s hearings where appropriate- something that they couldn’t, up until this point, be.

This is an important development. Amid the flux of family disputes, siblings may be the only constant, and a significant source of support, in a child’s life.

It has been pointed out that the promotion of sibling relationships is not always in a child’s best interests, and this is undoubtedly true of some cases.

However, requiring courts to take these relationships into consideration will ultimately benefit cases where these relationships do have a positive impact on their wellbeing.

Pursuing court alternatives

Another highlight of the bill includes steps to promote and support access to alternative dispute resolution (ADR) – ways to settle disagreements or issues without needing to go to court.

Firstly, the bill requires that ministers make financial assistance for ADR available through the Scottish Legal Fund, or establish an independent scheme to help people meet the costs of ADR, within six months of the bill receiving Royal Assent.

This will apply to disputes relating to the areas covered by section 11 (1) of the Children (Scotland) Act 1995 – broadly speaking, parental rights and responsibilities.

Secondly, it requires that ministers establish a pilot scheme for mandatory ADR meetings.

This will mean courts can, under certain circumstances, only make an order under section 11 (1) of the Children (Scotland) Act 1995, if the parties involved have already attended a meeting to understand how they could resolve the dispute.

Together, these steps will reduce the amount of cases that might unnecessarily make it to court – again relieving pressure on an already loaded system – and reduce the distress and pain that can come with a court appearance.

However, any pilot’s impact will very much depend on how well-resourced it, and any subsequent schemes, are. It will also be important that the pilot doesn’t concentrate on mediation as the only form of ADR available, particularly amid a wider movement in the Scottish legal community for the increased use of collaborative law to reach acceptable outcomes without having to go through a court process.

Supporting the vulnerable

Finally, the legislation brings in a number of protection measures for vulnerable witnesses.

This includes measures to prohibit individuals classed as vulnerable from conducting their own cases when giving evidence, and what the courts must to do support vulnerable individuals - both in terms of legal representation and special measures such as using screens or television links when giving evidence.

These mirror similar protections already in place in criminal cases, and are another welcome step forward – once again reducing the risk of distress or harm to those involved in family cases.

Missed opportunity?

Overall, the Children (Scotland) Bill makes headway in introducing new standards and strengthening certain processes in the family law system.

However, it could have gone further.

For example, an amendment in an earlier draft of the legislation, removed in the final bill, would have introduced a presumption of shared parenting for children in the event of their parents’ separation – a move that would have represented a paradigm shift in the approach taken to parenting by the government, solicitors and the courts.

The Children (Scotland) Act 1995 has endorsed the idea of parents having equal parental rights and responsibilities. But applying those rights and responsibilities has always proven difficult.

Adopting a presumption of shared parenting could have meant a more consistent starting point for solicitors advising parents that have separated on what the practical aspects of the law will be, and less room for argument, which can only be beneficial for the children involved.

It could also place the onus on the parent seeking to prevent the other parent from having contact with their child to justify their request, a more meritorious approach to court actions and a fairer distribution of any court expenses. Instead, the system continues to put the onus on a parent seeking to enforce their existing rights to go to court often at considerable expense.

Addressing factors like shared parenting is vital to ensure that Scotland’s family laws are as equitable and reflective of society as possible. Hopefully issues like this will have a chance again to be considered in future legislation.

As it stands, this new bill introduces many new measures that are to be commended, leaving us with improved, more robust family law processes and procedures.

Noel Ferry is a partner at Weightmans