by Ciara Wilson, Trainee Solicitor

As part of its 2018/19 Programme, the Scottish Government has issued a consultation paper on the reformation of Scottish Child Law and proposes several amendments to Part 1 of the Children (Scotland) Act 1995 (the 1995 Act). The paper covers a broad and radical ambit and has the potential to shape Child Law in light of contemporary society.

As it stands, Part 1 of the 1995 Act focuses on the needs of children and their families and defines parental responsibilities and rights in relation to children. In its ongoing consultation, the Government invites views on a number of amendments. The aim is to ensure that a child’s best interests are at the centre of any contact or residence case, ensuring that a child’s voice is heard and that cases and hearings are dealt with efficiently.

A number of the most revolutionary proposals are as follows:-

-          What say should the child have?

Currently, Sections 6 and 11 of the 1995 Act and Section 27 of the Children’s Hearing (Scotland) Act 2011 include presumptions that when a child reaches the age of 12, he or she is then of sufficient age and maturity to form a view. The consultation invites views on whether imposing such an age restriction is appropriate.

The presumption reads as though all children under the age of 12 are of insufficient maturity to form a considerable view and arguably it would be more appropriate to assess this on a child by child basis and avoid such blanket restrictions. In practice, however, courts are unlikely to refuse to obtain the views of those aged nine or over in light of the child’s maturity. Children of a younger age tend to be influenced by one of the parties involved and their opinion can therefore be prejudicial.

Consideration is given in the paper as to how children’s views are obtained and whether it would be most appropriate for this to be through a judge or sheriff or by appointing child support workers as opposed to the use of written submissions by the child. Understandably, children tend to complete the written form in the presence of one of the parties to the action who would undoubtedly influence the answers provided, regardless of the child’s honest opinion. Nonetheless, the cost and training implications of the various alternatives are have to be considered.

 -          Monitoring Contact

Section 11 of the 1995 Act gives Courts the power to make contact orders and to stipulate arrangements for maintaining personal relations and direct contact between children and individuals with whom they are not living.

It is enshrined in the United Nations Convention on the Rights of the Child (UNCRC) that a child has the right to preserve family relations. Scotland currently operates 44 contact centres which facilitate both supported and supervised contact in accordance with the risk posed to the child in each individual case. The Government consultation invites opinions on whether contact centres should be regulated and considers the benefits in doing so as against the argument that an unduly level of compliance might force some centres to close. While regulation might be the ideal solution, compulsory regulation would impose a strain on resources and government funding would be necessary to facilitate this.

A further question raised is whether there should be presumed grandparent contact. Nonetheless, currently grandparents can already apply to the court for contact, and arguably this is adequate to ensure that the pivotal question remains one of best interests. A rebuttable presumption to this effect might lead to the child having contact with an unsuitable grandparent, a prejudicial outcome.

-          Has the presumption that the husband of a woman is the father of her child become outdated?

The consultation seeks opinions on the long standing presumption that the husband of a woman is the father of her child and asks whether this has become outdated in civil society or, alternatively, that it creates little problems in reality and should therefore be maintained.  

-          Parental Rights and Responsibilities for step-parents and grandparents?

Those with parental rights and responsibilities (PRRs) are responsible for ensuring the child’s health and welfare are both safeguarded and stimulated. These individuals must provide guidance and direction and maintain personal relationships and contact with the child. In facilitating these responsibilities, he or she has the right to live with the child (or if he or she is not living with the child, to maintain relations and have contact with the child) and to have an element of input in their upbringing and decisions.

The consultation considers whether PRRs should be granted to step-parents without the need to obtain a court order. While this might save court time and resources, and recognises the role which thousands of step-parents across Scotland play in the lives of children in Scotland, the proposal risks jeopardising the entire spirit of the 1995 Act whereby the court must consider the welfare of a child and consider his or her views where appropriate. 

Currently, mothers automatically obtain PRRs but only men who are married to the mother at the time of the child’s conception or subsequently will automatically attain PRRs. If a man is not married to the child’s mother, he will have to jointly register the birth with the mother, obtain a court order or complete and register a PRR agreement with the child’s mother. A similar process is followed for same sex parents. The Government proposes introducing automatic PRRs, something which the Scottish Law Commission (SLC) supported in their 1992 report on Family Law, albeit this was a proposed change that was never implemented. Arguably this may encourage more father involvement in children’s upbringing and refute the contemporary view that the mother is the more involved party. Alternatively, however, there is concern as to how fathers would be identified or fatherhood established if not by reference to the child’s birth certificate. Another of the main opposing arguments raised when the issue was considered by the SLC in 1992 was how to protect and support victims of rape and domestic abuse.

 -          Alternatives to Court

The consultation seeks views on whether the Scottish Government should do more to encourage alternative options to court, with specific reference to mediation. Views are also sought on whether  and improved guidance for children and litigants should be provided. Court procedure is generally costly, time-consuming and distressing and mediation or collaborative law ought to be promoted as an alternative where appropriate. 

The consultation period closed on 28th September 2018. The Scottish Government is currently considering all responses received, together with any additional evidence. Thereafter, they intend to publish a Family Justice Modernisation Strategy outlining the results and any forthcoming developments.