Our Legal Policy Manager Janet Cormack highlights some of the changes the Children (Scotland) Act 2020 will bring for children and young people.
The Scottish Parliament passed the Children (Scotland) Act 2020 in August 2020. The changes it makes won’t happen immediately because they need to be brought ‘into force’ first – this gives the government, local authorities, courts and Hearings time to prepare for the changes before they have to start delivering them.
The new Act covers lots of different things. It aims to:
- bring the law further into line with children’s rights under the United Nations Convention on the Rights of the Child (UNCRC)
- make sure children’s views are heard in family court cases and children’s hearings and the best interests of children are at centre of those cases
- give more protection to victims of domestic abuse and their children
Many of the changes are to the law that was first made 25 years ago in the Children (Scotland) Act 1995. But changes are also made to the laws on Children’s Hearings, adoption etc.
Here are some of the main changes for children and young people:
Support to keep in contact with brothers and sisters
Local authorities will have a legal duty to support care experienced brothers and sisters’ relationships where they aren’t able to live together.
This should have been happening under regulations and guidance before, but the new law has much stronger legal duties which should make a big difference for brothers and sisters in care.
When taking decisions about a child in their care, a local authority will have to ask the child’s brothers and sisters for their views on what should happen.
Children’s Hearings and sheriffs will, when making, changing or continuing compulsory supervision orders, have a duty to consider contact with siblings and relevant persons who children are not living with.
Children’s Hearings will have to give brothers and sisters and other relatives the chance to take part in a Hearing that is making decisions about a child or young person. There will be further rules about this, but this means they will have the right to be notified of a hearing, to be provided with paperwork that is relevant to them, to be able to attend, be represented and seek review of decisions after 3 months.
When courts are making decisions about family matters, like where children are going to live and who they have contact with, the court must take account of children’s important relationships, like those with their brothers and sisters and grandparents.
You can read more here about the changes in the new law to protect and support children’s sibling relationships.
Children and young people will have more opportunity to give their views to courts and Children’s Hearings in the way they choose
Courts, Hearings and adoption agencies will take as the starting point that all children are capable of giving their views in some way, no matter their age. All children who want to must be given the chance to give their views, and give them in the way they prefer (whether that’s speaking to the sheriff, talking to a child welfare reporter, sending a letter or video, or drawing a picture etc.).
Until now there has been a presumption that a child aged 12 or over is considered mature enough to give their views, and although that hasn’t excluded younger children from being heard, that has been more unusual, so by changing the law it’s giving the clear signal that children of all ages must be given the chance to be heard.
Once they have heard the child’s views, the decision-maker must have regard to those views, taking into account their age and maturity.
Courts will explain their decisions to children
When courts make a contact, residence or other section 11 order about a child, they will have to make sure that their decision is explained to the child in a way they can understand. Either the sheriff will explain it face to face, electronically or by letter, or the court can ask a Child Welfare Reporter to explain the decision to the child.
This was one of the issues in the new law we felt really strongly should happen because at the moment it’s very rare – read Clan solicitor Rebecca’s blog here.
It won’t be necessary for every decision from every Child Welfare Hearing to be explained, but it will be for big decisions like ones on living and contact arrangements.
Courts must consider the child’s best interests before sharing their private information
When in family actions a court has to decide whether a person should have access to anything in which private information about a child is recorded, the sheriff must consider the best interests of the child, and give the child the opportunity to give their views.
Children will have support from advocacy workers in family court cases
This will take time to put in place for all children, but the Scottish Government must now set up advocacy services for children who are giving their views to courts in family legal actions (section 11 cases). Advocacy workers will support and represent children when courts are deciding, for example, where they should live and what contact they should have.
Measures to keep children safe in contact centres
Child contact centres are places children, parents and other people in the child’s life can meet. Rules will now be developed which all contact centres will have to follow.
The Act will also lead to new registers of Child Welfare Reporters (who give a report to the court after speaking to a child about their family situation), and Curators ad litem (who can be appointed by the court to represent a child’s interests in a court case) and standard rules on how they work.
Courts will also have to investigate the reasons that a contact arrangement may not have taken place and, in doing this, give the child concerned the chance to give their views on it and the court must have regard to those views.
Other changes in the Act include rules to avoid legal proceedings taking too long where this would negatively affect a child’s welfare, changes relating to appeals in Children’s Hearings, and new special measures to assist vulnerable witnesses and parties in courts.
More changes still to come
Work is being done by the Scottish Government on other changes it has talked about in its ‘Family Justice Modernisation Strategy’, so we can expect to see proposals for changes to regulations and guidance in the coming months. One of the things the Scottish Government has said it will do is change regulations to say that local authorities must keep siblings under 18 together when they are looked after away from home when it is in all of their best interests (see Part 10 of the Strategy).
If you have any questions on any of these issues, you can call us on 0808 129 0522 or email firstname.lastname@example.org and one of our solicitors will call you back.