Last week the Scottish Parliament unanimously passed the Children (Scotland) Bill. The Bill will now become law, bringing with it some of the most significant changes to the family court system in almost 15 years.
In this blog we look at the main changes that will be brought in by the Bill, and what that means for you if you need to use the court system for seeking orders relating to your children.
You can see the full Bill in its final form here. Below we answer your most asked questions about the new bill.
Why was this new law needed in the first place?
The Bill was brought in to try and make Scottish Law more compliant with The United Nations Convention on the Rights of the Child, also known as the UNCRC. One of the key principles of the UNCRC is that adults should always think about the best interests of children and young people when making choices that affect them. Court actions relating to children have a huge impact on them, and so the new law is intended to give children and young people more frequent and better opportunities to participate in these proceedings and to better regulate the professionals involved in deciding what is in their best interests.
What are the most significant changes in the family courts?
The law is intended to change the court process in contact and residence cases. It also covers changes to aspects of the Children’s Hearings system. The most significant changes (insofar as it relates to the family court process) proposed by the Bill include:
- Encouraging the court to hear the views of younger children;
- Protecting vulnerable witnesses in court cases about children;
- Regulating child contact centres;
- Regulating child welfare reporters; and
- Making alternative dispute resolution an option for people who are entitled to legal aid.
How old does a child need to be now to express a view about the case?
There is now no lower age limit for your child to now be able to express a view about proceedings which impact them. The law used to say that children older than 12 would be presumed competent enough to express a view, and those younger than 12 only competent enough on a case-by-case basis. That has now been changed to remove any reference to a specific age, and now every child will be assessed on a case-by-case basis in line with their maturity and ability to understand the proceedings concerned.
How will children express a view to the court?
The process will remain the same in that in most cases the child will be spoken to by a Child Welfare Reporter who will then write a report for the court about the child’s views. They may also fill in a form for the court if that is deemed to be more appropriate. There are some big changes in the Bill relating to the training and regulation of Child Welfare Reporters, including the establishment of a register and regular in-depth training for them as a requirement to maintain your place on the register.
What protections are now in place for vulnerable witnesses?
The changes to the law now mean that there is a requirement on the court and the solicitors involved in cases relating to children to more thoroughly consider whether protective measures are required for any potentially vulnerable witnesses (such as giving evidence behind a screen or over video link). This previously required the making of a vulnerable witness application but that is now no longer required, and there must be consideration given to this as part of preparations for Proof.
Will the bill change my court ordered contact that I already have?
No. It could, however, have an impact on your ongoing contact if you have contact in a Contact Centre, but only in a good way. The Bill has further regulated Contact Centres by requiring them all to meet a certain standard which should improve the service at these centres. This, however, will be subject to further guidance before it comes into force.
Is the Bill just about court cases?
Whilst it is mostly about court cases which relate to children, there are other elements to the Bill including important changes to the Children’s Hearing System and a section which plans to make Legal Aid available for Alternative Dispute Resolution (such as mediation and arbitration but only where the children involved are able to express a view and participate to the same level they would in court).
What should I do if I need to access the court for contact with my child?
You should contact us immediately. Time is often of the essence when contact has been removed, and it is important to try to fix that as soon as possible. We have a number of child law experts who regularly pursue such actions. Please be in touch and we can assist you.