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Child law: time for change?

18 June 18

Some key themes and issues raised in the consultation on the Children (Scotland) Act 1995, covering parental disputes concerning a child, among other contentious issues

by Nadine Martin

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.

There are 13 areas where views are sought, corresponding to the headings below.

1. Obtaining the views of a child

Should the current presumption that a child aged 12 years or older has sufficient maturity to express a view 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. Practitioners are asked how they feel this presumption operates in practice.

Also under this heading, the form F9 which is currently used is being adjusted to make it more child-friendly; a potential role for “child support workers” is discussed; and the paper supports the function of child welfare reporters in taking the views of children, while proposing more regulation and training (including for the judiciary) to ensure standards of competency. And should there be a mechanism to give an explanation to children about court decisions?

2. Commission and diligence

Should applications for commission and diligence that relate to information about a child only be granted if this will be in the child’s best interests? Should the child be given an opportunity to state their views?

3. Contact

This is one of the largest parts of the consultation paper and it covers various aspects.

(i) Contact centres. Do contact centres require more regulation? This would require primary legislation conferring power to make regulations about minimum standards for accommodation, training requirements, 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 grandparents. Should there be a presumption that it is in the best interests of a child to have contact with its grandparent(s)? Legislation exists elsewhere, and research has found contact to be generally beneficial, but it could lead to contact with an unsuitable parent via grandparents. A major concern is that such a provision would cut across the fundamental principle that the welfare of the child is the paramount consideration.

(iii) Children’s relationships with siblings. There is already Scottish Government guidance that contact with siblings for children looked after away from home is as important as contact with parents. Is the current provision that a person under 16 can apply for an order regulating sibling contact without seeking parental rights and responsibilities clear enough? For looked-after children generally, views are sought on whether existing guidance could be strengthened.

(iv) Compliance with contact orders. Should there be a change to the current provisions for failure to comply with a contact order? The paper explains that a tender exercise for a “family contact facilitator” was unsuccessful.

Its options are: (a) retain the current situation where a parent can raise contempt proceedings, with imprisonment available as a “last resort”; (b) impose non-custodial sanctions such as unpaid work, parenting classes or compensation; or (c) make breach of a contact order a criminal offence, subject to non-custodial penalties, enforcement being dealt with by the police: this could lead to criminalising parties to a dispute, and imprisonment could still be required as an ultimate sanction.

4. Cross-border cases

Should the current legislation which allows orders made in an “appropriate” UK court regarding contact and residence to be registered in the Court of Session be extended to include sheriff court(s)? In terms of cross-border UK cases, it is proposed that a guidance note will be issued.

5. Parentage

Should the current presumption that the husband of a woman is presumed to be the father of her child if they are married at any point beginning with conception and ending with birth, be removed? Some are said to consider it “old-fashioned”, but its removal could cause issues for succession purposes.

In relation to DNA testing, should the court have the power to compel a party to submit to DNA testing or facilitate testing of a child? This could have human rights implications and issues could arise regarding enforcement.

6. Parental rights and responsibilities

This area is also given significant attention in the consultation.

(i) Agreements for step-parents. Views are sought on introducing agreements conferring parental rights and responsibilities on a step-parent. This could reduce the number of court applications, but would increase the number of people in the child’s life with “rights” in relation to them.

(ii) Changing terminology. Should we remove the term “parental rights”, leaving only “parental responsibilities”, in line with the terminology used in England & Wales, as a way to put the emphasis back on the child?

(iii) Changing the terms “contact” and “residence”. Do the terms “contact” and “residence” lead to an implication that one parent has a “better” order than the other? Would terminology such as “child’s order” or “child arrangements order” be better, or might it cause confusion?

(iv) Automatic rights for fathers. This was recommended by the Scottish Law Commission in 1992, but there is concern that it could negatively impact on victims of abuse or rape. Is joint birth registration still a more appropriate test?

(v) Backdating of parental rights and responsibilities by virtue of joint registration. From 2022 the passage of time will mean that no father should require to apply for parental rights and responsibilities where there has been a joint registration. Is that sufficient?

(vi) Making joint birth registration compulsory. This could reduce the number of court cases raised by fathers but has implications in cases of rape and domestic abuse; enforcement is likely to be difficult.

(vii) Recognising joint birth registrations carried out overseas. There are a number of potential problems with this proposal. It is likely to apply to a relatively small number of fathers.

(viii) Presumption for shared parenting. Shared parenting is encouraged in other jurisdictions, supported by a rebuttable presumption, but again this might cut across the principle that the child’s welfare is paramount. This can cause difficulty in practice.

(ix) Legislation against a presumption. To the contrary, should there be primary legislation to the effect that the court should not presume that a child benefits from both parents being involved in their life? As with (viii), this might cut across the principle that the child’s welfare is paramount.

(x) Involvement of non-resident parent in decision-making. Could more be done to ensure that schools are aware of the identity and contact details of a non-resident parent so they can be kept up to date and be encouraged to involve themselves in decisions concerning their child? In decision-making about a child’s health, where they can already ask for their child’s records, should a child with sufficient capacity be able to refuse consent?

(xi) Not all s 11 orders come with parental rights and responsibilities. This would simply be a clarification of the current law – not all contact orders confer parental rights and responsibilities.

(xii) Turning a child against a parent. The introduction of “welfare checklists” for the court when dealing with s 11 orders or in further training for child welfare reporters could be used to address the issue of negative parental influence.

(xiii) Removal of parental rights and responsibilities. Should a criminal court be able to deal with an application to have a convicted person’s parental rights and responsibilities removed following conviction for a “serious criminal offence”? Alternatively, a duty could be imposed on the criminal court to consider removal of such rights in certain cases. There is already provision for removal by the civil courts, so this may simply cause additional cost and procedure.

7. Child abduction by parents

Input is sought on further preventative measures. Should there be specific statutory offences in Scotland relative to removal of a child without consent, as in England & Wales?

8. Domestic abuse

Here the paper looks at seven key areas.

(i) Cross-examination of victims. Should personal cross-examination of victims of domestic abuse be barred if there is evidence of domestic abuse, e.g. a criminal conviction? This would bring the civil courts in line with the criminal courts, but increase legal aid costs.

(ii) Protection in child welfare hearings. At present, parties or their solicitors need to make the court aware if there are domestic abuse issues or a party is vulnerable. This could be addressed by more proactive court management.

(iii) Protection of children from abuse. Do practitioners consider that s 11(7A)-(7E) of the 1995 Act makes children any safer in practice?

(iv) Repeated litigation. Should the court be given power to make orders preventing variation applications without leave? This could prevent unnecessary litigation, particularly in high conflict cases.

(v) Information on domestic abuse in s 11 actions. Should the civil courts continue to rely on parties bringing domestic abuse issues to their attention, or should they be more proactive? Options include a welfare checklist to be used by the court, and more guidance for practitioners.

(vi) Domestic abuse risk assessment. Should more be done to promote use of domestic abuse risk assessments in contact/residence cases? Child welfare reporters could be given training on domestic abuse risk assessment.

(vii) Interaction between criminal and civil courts. Should the civil and criminal courts be better integrated when dealing with domestic abuse cases? The practical and legal matters that integration would raise are many; an integrated court system could not be “established quickly”.

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. Scottish courts are already mindful of the requirement to avoid undue delay, an issue raised by people surveyed. Should cases involving s 11 orders only be heard in the sheriff court, as the vast majority already are? This would avoid “forum shopping” and could see a reduction in costs, but complex cases might still be better heard in the Court of Session. A “welfare checklist” would outline the factors to be considered by the court in s 11 cases, which could include domestic abuse, criminal convictions and whether a child is being influenced.

10. Alternatives to court

Should the Scottish Government do more to encourage alternative dispute resolution? In England & Wales (subject to exceptions), a parent has to attend a mediation information and assessment meeting (MIAM) before making a court application. Three options are outlined: the status quo; legislation, such as the equivalent of requiring a MIAM attendance; or better “signposting” of appropriate services (which might have limited effect).

11. Birth registration

Should a child’s views be taken regarding a change of name(s) on their birth certificate? Should a child under 16 with sufficient capacity be able to make their own application for such a change? 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 to show him as father. There is also a proposed amendment to s 20(1)(d) of the Act to reflect the same sex marriage legislation of 2014.

12. Children’s hearings

Should the principal reporter have the right to appeal the determination of a party as a relevant person? Scope to modernise the children’s hearing system, such as using remote-link viewing for children and vulnerable people, and pre-recorded views, is considered. It is also proposed that the local authority be entitled to receive certain papers before a 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, and forced marriage), and to a discretionary ban in others. This would bring children’s referral proceedings in line with criminal proceedings, but again would increase legal aid costs.

13. Domicile of persons under 16

Finally, should s 22 of the Family Law (Scotland) Act 2006 (domicile of persons under 16) be clarified? At present, it does not make reference to “domicile of origin” or “domicile of choice”, but the provision has yet to be tested in court. 

Conclusions

Given the ever-evolving landscape of family life in Scotland and the societal changes 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 that 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
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