5th September 2019

This week the Scottish Government published the Children (Scotland) Bill and, alongside it, a Family Justice Modernisation Strategy detailing further changes, including secondary legislation and guidance, in a variety of areas.  

The policy objectives of the Children (Scotland) Bill are to:

  • ensure the views of the child are heard in contact and residence cases
  • further protect victims of domestic abuse and their children
  • ensure the best interests of the child are at the centre of any contact and residence case and children’s hearing
  • further compliance with the UNCRC in family court cases  

The Bill amends the Children (Scotland) Act 1995, in particular concerning parental responsibilities and rights and related court orders, the Matrimonial Proceedings (Children) Act 1958, the Family Law Act 1986, the Vulnerable Witnesses (Scotland) Act 2004, the Adoption and Children (Scotland) Act 2007 and the Children’s Hearings (Scotland) Act 2011. 

The Bill includes provisions on: 

  • taking account of children’s views (sections 1-3); removes the current legal presumption that a child aged 12 or over is considered mature enough to give their views (the purpose is to ensure the views of younger children are fully considered); decision-makers must give children the opportunity to express views in a manner suitable to the child on key decisions that may affect them 
  • explaining decisions to children (section 15) 
  • protecting vulnerable witnesses and parties in court in cases concerning children (sections 4-7) 
  • regulating child welfare reporters (section 8), curators ad litem (section 13), and contact centres (section 9) 
  • promoting personal relations and contact between looked after children and siblings (section 10) 
  • a new duty on courts to investigate non-compliance with section 11 court orders (section 16) 
  • appeals under the Children’s Hearings (Scotland) Act 2011 (sections 17-18), including giving the Principal Reporter the right to appeal a decision of a sheriff in an appeal where deemed relevant person status is an issue  
  • requirement on courts to have regard to risk of prejudice to child’s welfare that a delay in proceedings would pose (section 21) 
  • recognising parental responsibilities and rights obtained outwith the UK (section 19) 
  • extending sheriff court enforcement powers under Family Law Act 1986 (section 20) 

The Family Justice Modernisation Strategy contains further actions beyond those in the Bill, including changes to regulations and guidance (see handy list in Annex A). It also sets out reasons why some of the areas that were consulted on as part of the public consultation last year have not been taken forward (these are listed in Annex B). 

All responses to the public consultation on this which took place last year can be read here. Clan Childlaw's response is published on our website here

PROPOSED CHANGES TO PRIORITISE SIBLING RELATIONSHIPS 

The Children (Scotland) Bill and the Family Justice Modernisation Strategy include significant proposals to change the law to protect the sibling relationships of children in care. The key changes proposed are: 

- a duty on local authorities to promote personal relations and contact between a looked after child and their siblings, where this is practicable and appropriate, and, before making any decision with respect to the child, to seek the views of the child’s siblings when it is reasonably practicable to do so (section 10 of the Children (Scotland) Bill)

- a duty on local authorities to place siblings under 18 years of age together when they are looked after away from home when it is in their best interests to do so (this duty would be introduced by amending the Looked After Children (Scotland) Regulations 2009) 

The Modernisation strategy also details other actions relating to prioritising the sibling relationships of brothers and sisters in care - read more in this blog article on this on the Stand Up for Siblings website. 

Submit your views to the Scottish Parliament Justice Committee

The Justice Committee is seeking views on the Bill and Strategy with a closing date of Friday 15 November 2019.