By Gillian Black, Senior Lecturer in Family Law, University of Edinburgh

In September 2019, the Scottish Government published the Children (Scotland) Bill, introduced by Justice Secretary Humza Yousef. This Bill is, in part, a response to the detailed and lengthy consultation on the Children (Scotland) Act 1995 carried out by the Scottish Government over the summer of 2018, seeking input on a wide range of matters concerning children and families. The Bill started its progress through Parliament in November 2019, under the lead of the Justice Committee.

The Bill principally seeks to reform existing legislation: it introduces new measures which affect a range of current provisions, ranging from the Children (Scotland) Act 1995, to the Vulnerable Witnesses (Scotland) Act 2004 and the Children’s Hearings (Scotland Act 2011. The key reforms can be grouped as follows:

1. 1. Seeking the views of the child
   2. The welfare of the child: introducing a welfare checklist
   3. Enhancing the protections available to vulnerable witnesses
   4. Regulation and registration provisions for certain people/ organisations working with children
   5. Promoting sibling contact
   6. Clarifying appeals available under the 2011 Act in respect of Children’s Hearings.

This short blog focuses on two provisions in the Bill which are intended to enhance child participation: seeking the views of children, and feeding back to them once decisions are made.

Seeking the views of children

Statutory provisions such as sections 6 and 11 of the Children (Scotland) Act 1995 promote child participation by obliging adults (including the courts) to have regard to children’s views when taking decisions about them. However, this duty on adults is limited by the proviso that the child must be competent to express a view, and that “a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view.” In some cases, this “age 12 presumption” has become a shorthand for not involving children under the age of 12. This limitation is also contrary to the United Nations Convention on the Rights of the Child, where article 12 gives the right to children to express views, without limit of age.

The proposals set out in sections 1-3 of the new Bill remove the age 12 presumption of competence when children are asked for their views, thus bringing Scots law into line with the UNCRC, and are therefore to be welcomed. The hope is that more children will be encouraged to participate in decisions concerning them, and share their views in a meaningful way. However, these changes will take place against the backdrop of existing culture and practice in Scots law: so any resistance which currently exists will need to be challenged and overcome. A cultural shift, as well as a legislative one, will be required to ensure these reforms have their fullest impact.

This change, if enacted, will affect the duty to listen to the views of the child which is currently in the Children (Scotland) Act 1995 (sections 6 and 11); The Adoption and Children (Scotland) Act 2007 (sections 14 and 84); and the Children’s Hearings (Scotland) Act 2011 (section 27).

Note that other statutory measures which turn on the age 12 presumption remain unaffected, eg instructing a solicitor, making a will, or consenting to adoption (as set out in section 2 of the Age of Legal Capacity (Scotland) Act 1991).

Feeding back to the child

Closely related to seeking the views of children is the new proposal contained in section 15 of the Bill. This will require the court to explain to the child any decision it makes under section 11 of the Children (Scotland) Act 1995 concerning that child. This could be a decision regarding contact or residence, for example, or some other aspect of the parent/ child relationship. At the moment, there is no such duty, and practice is variable – with the suspicion that the majority of judges do not specifically provide feedback to the child on why they have reached any particular decision. Where a child has expressed views, however, it is really important that they are given a clear explanation of how their views were listened to, especially if the judge reaches a decision which is contrary to their wishes.

While section 15 envisages the child being given an account of why a particular decision has been reached, there are some exclusions. First, the court can delegate its duty, by arranging for a child welfare reporter to give the explanation to the child instead. Secondly, the court can decide not to give an explanation at all if:

1. 1. The child would not be capable of understanding it;
   2. It is not in the best interests of the child; OR
   3. The location of the child is not known

Thus, how this duty will work in practice remains to be seen. In order to ensure that courts fulfil their obligations under this new measure, a (non-statutory) guidance or practice note could be beneficial, to help direct the judiciary as to how best to explain decisions to the child, and the need for special sensitivity or care in certain circumstances, eg vulnerable children. Again, a shift in culture may be required, to ensure that the aim of the reform is fully realised.

Impact on the Children (Scotland) Act 1995

One of the concerns about the new Bill is the damage it will inflict on the structure of the Children (Scotland) Act 1995. Rather than introducing new legislation, the Bill amends the 1995 Act, inserting lots of new sections into Part 1, so that the (currently fairly straightforward) 1995 Act will become peppered with sections such as 11ZA, 11C, 11D, 11E, and 11F, for example. This risks over-complicating the Act, to the detriment of accessibility: finding one’s way round the revised 1995 Act will be a challenge for all, not least parents seeking to represent themselves.

Concluding thoughts

The Bill is certainly a step in the right direction and, while the resulting complexity of the 1995 Act is to be lamented, the new measures – and the change in culture they seek to create – are very welcome. Moreover, while this blog has touched on two of the proposals, the Bill seeks to make meaningful improvements to children’s lives in myriad other ways. Its progress through Parliament should be watched with interest!

Dec 13, 2019