Child law: time for change?
The fuller version of the article highlighting key themes and issues in the Scottish Government's consultation on part 1 of the Children (Scotland) Act 1995
Key themes and issues
On 15 May 2018, the Scottish Government launched a consultation to consider part 1 of the Children (Scotland) Act 1995. It considers issues affecting children and families which have come into sharper focus since 1995, including the evolution of the modern family unit, as well as international mobility of families and domestic abuse. It also considers areas where law and procedure have evolved through years of practice and whether they might benefit from clearer regulation and training.
The consultation covers a wide range of issues which affect children, parents and other family members. There is a clear aim to consider topics which have come into sharper focus since 1995, including more modern and complex family arrangements, step-family relationships, shared care between separating parents, grandparents' rights, international mobility of families and domestic abuse. It also looks at areas where law and procedure have evolved organically through years of practice and whether those areas might benefit from clearer regulation and training for practitioners and members of the judiciary.
There are 13 specific areas included in the consultation:
- Obtaining the views of a child
- Commission and diligence
- Cross-border cases within the UK: jurisdictional issues
- Parental responsibilities and rights
- Child abduction by parents
- Domestic abuse
- Court procedure
- Alternatives to court
- Birth registration
- Children’s hearings
- Domicile of persons under the age of 16
1. Obtaining the views of a child
Views are sought on whether the presumption that a child of 12 years or older has sufficient maturity to express a view should be removed. The paper reports feedback that this provision is often interpreted to mean that children under 12 are not capable of expressing a view. Views are sought from practitioners about how they feel this presumption operates in practice.
The paper also looks at the various ways in which the views of children are currently obtained. Form F9 is in the process of being adjusted to make the language more child friendly. It further considers whether there is a role for “child support workers”, although the potential cost to the Scottish Government of setting up child support workers is an estimated £3.2 million per year.
The consultation is clear that there is scope for child welfare reporters to continue to play a significant role in taking the views of children, but does recommend considering more regulation and training for court reporters and the judiciary to ensure standards of competency and training are met. Views are also sought on whether provision should be made for someone appointed by the court to give feedback to children explaining the court’s decision.
2. Commission and diligence
Views are sought on whether in s 11 cases applications for commission and diligence that relate to data or information about a child should only be granted and the information provided if it can be established that this will be in the child’s best interests, and whether the child should be given an opportunity to give their views.
This is one of the largest parts of the consultation paper and it looks at various aspects of modern family life:
(i) Contact centres. There is currently a public petition in the Scottish Parliament calling for a review of the current system of contact centres. Regulation of contact centres would require primary legislation giving the Scottish ministers power to make regulations about minimum standards for contact centre accommodation, training requirements (including training on how to deal with domestic abuse cases), processes for inspection and a complaints procedure. There are concerns that more regulation could lead to excessive cost and may lead to closure of contact centres.
(ii) Children’s relationships with other family members – grandparents. Views are sought on whether there should be a presumption that it is in the best interests of a child to have contact with its grandparent(s). Legislation of this type has been enacted in other jurisdictions. Research supports the proposition that in general terms it is beneficial to children to have contact with their grandparents. However a presumption of this type could lead to contact with an unsuitable parent via the grandparents, and could lead to more people having “rights” in relation to a child. A major concern is whether this type of presumption would cut across the fundamental principle of the 1995 Act that the welfare of the child is the paramount consideration and does not take into account that every case is different.
(iii) Children’s relationships with other family members – siblings. This part of the consultation looks at the many different types of family structures there are, including families with half- and step-siblings. There is already guidance from the Scottish Government (in relation to children looked-after away from home) that contact with siblings is as important as contact with parents. Views are sought on whether the current legislative provision is clear enough that a person under 16 can apply for an order regulating contact with a sibling without having parental rights and responsibilities. In relation to looked-after children generally, the consultation seeks views on whether existing guidance could be strengthened.
(iv) Compliance with contact orders. Views are sought on whether there should be a change to the current provisions for dealing with a failure to comply with a contact order. The paper explains that there has been an attempt to set up what would be called a “family contact facilitator”, but that this did not proceed as they could not attract a tender that met the specifications. The options outlined are (a) to retain the current situation, where a parent can apply for variation or for contempt proceedings, with imprisonment being available as a “last resort”; (b) to impose alternative sanctions such as unpaid work, parenting classes or compensation for financial loss, removing the threat of imprisonment; or (c) making a breach of a contact order a criminal offence which would be subject to non-financial penalties. Enforcement would be dealt with by the police. The paper acknowledges the potential concern about criminalising contact disputes. There is also a concern that if there are alternative sanctions in place, imprisonment would still need to remain as a sanction if a parent failed to comply.
4. Cross-border cases
It is suggested that the current legislation which allows orders made in an “appropriate” UK court regarding contact and residence to be registered in the Court of Session should be extended to include the sheriff court. In terms of cross-border UK cases it is proposed that a guidance note will be issued.
This part of the consultation seeks views on the current presumption that the husband of a woman is presumed to be the father of her child if they are married at the time of the birth. It is suggested that this concept could be considered by some to be “old-fashioned” but that its removal could cause issues for succession purposes. It is also noted that the provision for joint registration of the child’s birth could deal with this issue.
The consultation also considers the issue of DNA testing and whether the court should have the power to compel a party to submit to DNA testing or facilitate testing of a child (rather than the current provisions where an adverse inference can be drawn by failure to participate). The paper properly recognises that this type of power could have ECHR implications and that there could be issues regarding enforcement.
6. Parental rights and responsibilities
This area is given significant attention in the consultation, and understandably so given the changes in family life which have become far more commonplace since the 1990s.
(i) Parental rights and responsibility agreements for step-parents. It is suggested that an agreement conferring parental rights and responsibilities on a step-parent could be introduced. This could reduce the number of applications made to the court, but would require co-operation and could increase the number of people in the child’s life with “rights” in relation to them, increasing the potential for disputes.
(ii) Changing terminology. Views are sought on taking away the term “parental rights”, leaving only “parental responsibilities”. In England & Wales, the term used is “parental responsibility”. This could put the emphasis back to the child rather than on what the parent is “entitled” to.
(iii) Changing the terms “contact” and “residence”. There is a suggestion that the terms “contact” and “residence” can lead to an implication that one parent has a “better” order than the other. It is suggested that terminology such as “child’s order” could be more appropriate, with England & Wales having replaced the former terms with “child arrangements order” in 2014 and New Zealand and Australia using “parenting order”. Views are sought on whether this would achieve any change in practice and whether it might confuse people about exactly what the order confers on the holder.
(iv) Automatic parental rights and responsibilities for all fathers. The Scottish Law Commission recommended in 1992 that fathers should automatically acquire parental rights and responsibilities. There is a concern that this type of provision could negatively impact on victims of abuse or rape, as well as on women who conceive as a result of a casual liaison, and that the commitment shown by, for example, a joint birth registration, remains more appropriate than an automatic grant.
(v) Backdating of parental rights and responsibilities by virtue of joint registration. This would mean that a grant of parental rights and responsibilities by virtue of joint registration would not depend on “an accident of the calendar”, but as the paper observes, from 2022 the passage of time will mean that no father will require to apply for parental rights and responsibilities where there has been a joint registration.
(vi) Making joint birth registration compulsory. This has been introduced in Australia and New Zealand. In England & Wales there is legislation which has not yet been implemented. This could reduce the number of cases raised by fathers seeking to be named on the birth certificate, but again has implications in cases of rape and domestic abuse and enforcement is likely to be difficult.
(vii) Recognising joint birth registrations carried out overseas. The consultation highlights potential problems with this, including considering what an overseas equivalent of joint registration is and which countries it should apply to. It is likely to apply to a relatively small number of fathers.
(viii) Presumption for shared parenting. The consultation reports that there is evidence to show that shared parenting can benefit a child, and that in other jurisdictions there is legislation which encourages shared parenting. Any presumption of benefit would be rebuttable. There is a question over whether a presumption of this nature would impact on the keystone principle of the child’s welfare being paramount in the decision-making process. This is an aspect of modern parenting that can cause difficulty in practice for parents and practitioners.
(ix) Legislation against a presumption for shared parenting. This would be the opposite of the principle referred to above. There is research to suggest that if parental conflict is high, having both parents involved in their life can be more stressful for a child. Again, it is observed that this might impact on the wider principle that the child’s welfare is the paramount consideration.
(x) Involvement of non-resident parent in decision-making. Views are sought on whether more could be done to ensure that schools are aware of the identity and contact details of a non-resident parent so that they can be kept up to date about the child. The consultation acknowledges that parents with parental rights and responsibilities are already able to ask for their child’s health records. It raises the question of whether a child with sufficient capacity should be able to refuse consent for the records to be accessed.
(xi) Not all section 11 orders come with parental rights and responsibilities. This would simply be a clarification of the current law – an emphasis that not all contact orders require the applicant also to seek parental rights and responsibilities.
(xii) Turning a child against a parent. The issue of a child being influenced by one parent against the other is raised. In England & Wales, CAFCASS has been trialling guidelines regarding “parental alienation”. Potential remedies for the negative impact on the child’s wellbeing could be the introduction of “welfare checklists” for the court when dealing with s 11 orders, or training for child welfare reporters. Not everyone accepts that “parental alienation” is a syndrome capable of being diagnosed, but there are growing calls for more education and support for parents to avoid even unconscious influence being brought to bear upon a child.
(xiii) Removal of parental rights and responsibilities following offence. Views are sought about whether an application could be made to a criminal court following conviction for a “serious criminal offence” to have the convicted person’s parental rights and responsibilities removed. Alternatively, a duty could be imposed on the criminal court to consider removal of parental rights and responsibilities in certain cases. There is already provision in the civil courts for removal of parental rights and responsibilities, so this may simply cause additional cost and procedure, particularly in relation to the appeals process.
7. Child abduction by parents
Input is sought on further preventative measures while recognising that “families are becoming increasingly international”. In England & Wales, there are specific statutory offences relative to removal of a child without consent and the consultation seeks views on whether this should be extended to Scotland. At present, in cross-UK cases, the remedy of interdict can be used to prevent removal without consent.
8. Domestic abuse
There are seven key areas where the paper seeks views.
(i) Cross-examination of victims of domestic abuse. The consultation considers whether personal cross-examination of victims of domestic abuse should be barred if there is a criminal conviction for domestic abuse, a civil order in relation to domestic abuse is in place, or if the courts so direct based on evidence of domestic abuse. This would bring the civil courts in line with the criminal courts, but would lead to an increase in legal aid.
(ii) Protection of victims and vulnerable people in child welfare hearings. At present, situations arise where victims have to sit at the same table as their abusers in a child welfare hearing setting. It is for the parties or their solicitors to seek that measures are put in place to prevent this. One option is clearer court management in these cases.
(iii) Protection of children from abuse. Views are sought on whether or not s 11(7A)-(7E) of the 1995 Act makes children any safer or whether it encourages parents to use domestic abuse as a way to frustrate orders being made.
(iv) Repeated litigation. In England & Wales there is provision for the court, when disposing of a case involving contact or residence, to order that no further applications can be made to vary the order without first seeking leave of the court. This type of measure could prevent unnecessary litigation from proceeding too far, particularly in high conflict cases.
(v) Information on domestic abuse in s 11 actions. The question here is whether the civil courts should continue to rely on parties bringing domestic abuse issues to their attention, or should they be more proactive in finding out information of this type? Options include a welfare checklist to be used by the court and more guidance for practitioners.
(vi) Domestic abuse risk assessment. The consultation seeks views on whether more should be done to promote use of domestic abuse risk assessments when a contact/residence case is in court. An option here is to give child welfare reporters the necessary training to include this type of assessment as part of their duties.
(vii) Interaction between criminal and civil courts. The consultation observes that in some other jurisdictions there is an integration between the civil and criminal aspects of the court process where domestic abuse is an issue. The practical and legal matters that this type of integration would raise are many, and the consultation acknowledges that an integrated court system could not be “established quickly” and that more research would be needed as to its effectiveness.
9. Court procedure
Views are sought on the timing of cases, the type of court which should hear s 11 cases and the creation of a “welfare checklist” of factors in s 11 cases. The length of time taken to deal with s 11 cases was a clear issue for people surveyed. In England & Wales there is primary legislation which tackles “undue delay” which can prejudice a child’s welfare and cause stress. It is observed that courts in Scotland are already mindful of the requirement to avoid undue delay. In terms of the forum for s 11 cases, the vast number of those are heard in the sheriff court with a relatively small number heard in the Court of Session.
Views are sought on whether s 11 orders should only be heard in the sheriff court. This would avoid “forum shopping” and could see a reduction in costs, but complex cases may still be better heard in the Court of Session, and there is the issue of wider cases (e.g. for divorce) which also involve s 11 orders being determined there. The consultation also considers whether to introduce a “welfare checklist” which outlines the factors to be considered by the court when dealing with s 11 cases. This type of checklist is used in courts in England & Wales and could include factors like domestic abuse, criminal convictions and whether a child is being influenced by their parent.
10. Alternatives to court
The Independent Strategic Review of Legal Aid called for mediation to be seen as “a credible readily available alternative to courts”, and the consultation paper considers whether the Scottish Government should do more to encourage alternative dispute resolution including mediation, arbitration, collaborative law, family group conferencing and family group therapy. In England & Wales, a person has to attend a mediation information and assessment meeting (MIAM) before making an application to the court for a child arrangement order (equivalent to a s 11 order for contact or residence). There are exemptions to this requirement.
The consultation proposes three main courses of action: to take no further action; for the Government to introduce legislation, such as the equivalent of requiring a MIAM attendance; or better “signposting” of appropriate services. Of the latter two, “signposting” would be significantly cheaper but might not increase the number of people using mediation or ADR to resolve disputes.
11. Birth registration
The consultation considers the issue of change of name(s) on a child’s birth certificate and the registration of birth by unmarried fathers. The current provisions regarding a change of name do not make provision for the child’s views to be taken, or for a child under 16 with sufficient capacity to make their own application to change the name(s) on a birth certificate. Views are sought on these issues. Views are also sought on whether a father who has declarator of parentage and parental rights and responsibilities should be able to re-register the birth, showing him as father on the birth certificate. There is also a proposed amendment to s 20(1)(d) of the Act to reflect the same sex marriage provisions introduced by the Marriage and Civil Partnership (Scotland) Act 2014.
12. Children’s hearings
Views are sought on whether the principal reporter should have the right to appeal the determination of a party as a relevant person. Amendments are proposed to modernise children’s hearings, such as using remote-link viewing for children and vulnerable people and the use of pre-recorded views. It is acknowledged that this type of modernisation could lead to issues of data protection and confidentiality. It is also proposed that the local authority be entitled to receive certain papers, for example the full safeguarder’s report, before the hearing takes place. It is proposed that personal cross-examination in cases where grounds of referral are before the sheriff would be subject to a mandatory ban in certain circumstances (sexual offences, domestic abuse, forced marriage), and a discretionary ban on the motion of a party or on the sheriff’s ex proprio motu determination. This would bring referral proceedings into line with criminal proceedings, but would have the legal aid implications mentioned in relation to the civil “ban” on personal cross-examination.
13. Domicile of persons under 16
The last part of the paper considers whether s 22 of the Family Law (Scotland) Act 2006 (which relates to the domicile of persons under 16) needs to be clarified, as it does not make reference to “domicile of origin” or “domicile of choice”. The provisions do not appear to have been tested in court, so it is perhaps premature to amend it at this stage.
Given the ever-evolving landscape of family life in Scotland and the changes in society that we have seen since 1995, it is appropriate that the consultation is wide ranging and ambitious in scope. It revisits what has been a well-regarded and well-used piece of legislation. It is imperative that we consider how courts and families interact, particularly given the growing recognition of the negative and lifelong impact of adverse experiences on children. It is heartening however that running through the consultation is the clear thread that in many (although not all) situations our current legislation, which has as its heart and foundation the child’s welfare as the paramount consideration, remains good, workable law which has helped and will continue to help families make the best decisions for their children.
The consultation can be accessed here. Responses are due by 7 August 2018.
Nadine Martin is an associate with Harper Macleod, and an accredited specialist in family law and family mediation