The Children Scotland Act 2020 – The Overdue Update to Court Proceedings

The Children (Scotland) Act 2020 (‘the 2020 Act’) is a welcome update and goes some way to bring the law governing decisions about children into the 21st century.  The changes apply to the primary legislation, which is The Children (Scotland) Act 1995 (‘the 1995 Act’).  The Scottish Government have now listened to children, families and organisations who have in the past criticised the practical implementation of the 1995 Act in court cases involving children i.e., contact disputes, residence orders or other section 11 orders.

We will therefore highlight the main changes in the new legislation to help you understand what parents and children involved in court proceedings can now expect.

Removal of age 12+ presumption for child’s views

The purpose of this change is to ensure younger children who can form a view on contact etc, and wish to give their views, can do so.  Under the 2020 Act, the presumption will be that any child can form and provide the court with a view, unless the contrary is shown.  We have already seen cases appealed where the relevant courts have not provided a child with the opportunity to express a view and have done so in the absence of evidence that the child was unable to form a view due to his/her age and maturity.

Abandonment of the F9 

The 2020 Act goes further in obtaining the views of children and abandons the ‘one-size fits all’ approach of gathering the views of a child through the F9 Form.  Children are now encouraged to provide their views in any manner they prefer, such as drawings, video recording, letter writing or play therapy – whatever the child feels comfortable with.

Duty of Court to explain the reasons for a decision 

Once the court has reached a decision in relation to contact, residence or other section 11 orders, the Sheriff will be required to communicate that decision to the child, in a way the child can understand.  This could be conveyed face-to-face, electronically, in writing or the Sheriff can request a Child Welfare Reporter to explain the decision.  This change provides a child with the opportunity to hear why a decision has been made from a neutral party, and in language the child understands, rather than having both parents explaining it to them differently. 

Failure to Obey Order 

The 2020 Act introduces section 22 where a party fails to comply with a court order such as a contact order.  When the court is considering finding a person in contempt of court for failing to obey a s.11 order or varying such an order where a party has failed to obey it, the court must seek to establish the reason for the failure, must give the child an opportunity to express a view and must give regard to any views expressed.  It is not clear how this new section will encourage parties to adhere to contact orders or how many parties will seek recourse under this section due to additional litigation costs.  Only time will tell whether this section proves useful or not.

If you require advice on any of the issues mentioned in this article, please contact a member of the Miller Hendry Court Department.