The Children (Scotland) Act 2020 – New rights for Children, Siblings and Extended Family in Child-Focused Court Proceedings

Current Legislation

At the heart of any legal process in Scotland involving children is the best interests of the child. This is the court and the children hearing system’s paramount consideration and objective. The Children (Scotland) Act 1995 provides that a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view. In other words, children under twelve years old were legally not considered mature enough to form a view on what was in their best interests. The child’s future was therefore decided by a decision-maker without having to have regard to the their actual view. This was problematic as the irrelevance of the child’s views if twelve years old or under could be argued as being detrimental to the child’s best interests. Change was sought to address the imbalance and ensure the child’s wellbeing was at the centre of the decision-making process.

New Legalisation

On 1st October 2020 the Children Scotland Act 2020 came into force. This legislation sought to overhaul outdated parts of the 1995 Act, but also other legislation concerning children’s hearings and adoptions. Its objective is to (a) bring the law further into line with children’s rights under the United Nations Convention on the Rights of the Child (UNCRC), (b) ensure a child’s view is heard and taken into account in a court/ children’s hearing process (and the best interests of child is at centre of that process), and (c) give more protection to victims of domestic abuse and their children. Some of the main changes in the 2020 Act focus on empowering and encouraging the expression and inclusion of a child in the decision-making process, as opposed to disregarding their views because of their age alone.

New rights for children under 12 years

The 2020 Act replaced the presumption that only children twelve years old and over are mature enough to from a view. The new act provides that all children are capable of giving their views…… except in exceptional circumstances. The courts are able to use their discretion in determining how much weight to put on the particular child’s view, taking into account the child’s age and maturity. This means that what the child actually wants now can, and usually will, be taken into account in the decision making process.

New provisions to allow children to express their views creativity

Previously in the 1995 Act, the court process to ingather a child’s view involved them filling in a paper form with the help of a parent, guardian or other trusted person. This process was cumbersome and not utilised well by many children. The new act requires the child to provide their views in the way they want for example via drawings, writing, video, in person. The 2020 Act facilitates flexibility and promotes creativity within the court process to encourage the child to give their views in the way they want, which should therefore allow a well informed decision to be made.

New provisions for the Sheriff / Judge to explain the final court decision to the child

The 2020 Act also places an obligation on the courts to explain the decision they make to the child in a way they will understand. Previously there was a presumption a parent, guardian or other third party close to the child would explain the outcome to them. The courts were not supportive of this in the first instance given the increased workload it would give sheriffs/ judges. They saw this to be unworkable. However evidence showed that the outcome of court proceedings had left a child feeling anxious (due to them questioning whether the outcome was their fault and generally not understanding), the 2020 Act allows the outcome case to be explained by the decision-maker (who is neutral) in a way they can understand.

Recognition of the importance and involvement of the Child’s Siblings and promotion of ongoing relations

One of the other major overhauls in the 2020 Act is that it places a duty on local authorities to promote relations with siblings where appropriate. It places a legal responsibility on local authorities to take into account and encourage contact between siblings where appropriate and in situations where they have been separated from being together in the family home/ unit. Sheriffs and judges are also to consider contact with siblings and other relevant persons who are not living with the child, when making, amending or continuing compulsory supervision orders.

New Provisions to allow siblings, grandparents and other relatives to participate in Children’s Hearing Process.

The Act also grants eligible siblings and relatives the right to participate in a children’s hearing process, when there was previously no such right in earlier legislation. This is an important change which aims to include grandparents and siblings in the decision making process and for their views to be considered. The 2020 Act recognises the importance of inclusion of siblings and the wider family network. The new Act’s child-friendly approach empowers children to be able to express their views to the court and in turn, gives them confidence that their views form an important part of the decision-making process.

How BBM Solicitors can help in family law matters

BBM solicitors family law department provides clients with discreet, confidential advice in divorces/ separations, cohabitation/ civil partnership dissolutions, contact/ residence arrangements for your child(ren), and grandparent rights/ contact disputes . Our focus is on client satisfaction and service standards. Our family law team are easy to talk to, down to earth and have the expertise to support you from the initial stages through to resolution. We can offer advice on negotiations, alternative dispute resolution (including mediation) and the Court process whether it be the Sheriff Court or Court of Session. We offer a no-obligation, free initial telephone consultation. If you require any assistance please dial 01955 604188 and ask to speak with a solicitor in our family law team.