Should it be mandatory for judges to explain court decisions to children?

February 10th 2020

Rebecca Scott, Managing Solicitor at Clan, discusses changes proposed in the Children (Scotland) Bill that would place a duty on courts to ensure decisions are explained to children – and argues it should be judges themselves who speak or write to children

Among the changes proposed in the Children (Scotland) Bill is that in future, when court make section 11 orders about a child, “the court must ensure that the decision is explained to the child in a way that the child can understand”, subject to exceptions (see section 15 of the Bill).

The issue has been discussed in the Scottish Parliament’s Justice Committee’s scrutiny of the Bill. Various viewpoints have been put forward in the evidence submitted to the committee (see the evidence here). 

We are really pleased to see this provision in the Bill.  It is necessary that this provision be in legislation in order to change practice.

It is important that children are not only appropriately involved in proceedings concerning them, but that they understand decisions ultimately made about them and the reasons behind the decisions.

We need to take this opportunity to be more ambitious about developing a more child focused Court system. Although our Children’s Hearing System is not perfect, legislation allows for Children’s views to always be considered and decisions and reasons to be shared.

We have experience first-hand of clients who have chosen to share their feelings and views to the court and have not been informed of the decision later made about them. This decision hugely impacts on their life, yet the court has not provided any information. This often leaves our clients feeling confused, upset and it can be very difficult for them to accept the decision whereby it has gone against their views.

The Bill gives the court the option of giving the explanation to the child itself or of arranging for a Child Welfare Reporter to give the explanation. In our view the decision should be communicated orally or in writing by the court itself rather than the Child Welfare Reporter. Unlike the position of safeguarders in the Children’s Hearings System, Child Welfare Reporters are not present at court when cases are heard and decisions are made. There is also the possibility of hostility on the part of the child to the Child Welfare Reporter. 

Clan Childlaw are supportive of the role in which a Child Support Worker can play throughout these court proceedings and have suggested this in written evidence as an alternative to the sheriff explaining the decision to a child if they have been involved throughout. This is part of the role of Court Contact Rights Officer in West Lothian and the experience has been positive. 

From our experience, children need support AFTER the decision has been made in order that their questions can be addressed, and the decision can be implemented. The support we provide our clients extends to working with the child after the case is over, when required. It is on that basis that we favor communication by the decision maker in appropriate language. We commend the benefits to more child-centred approaches like in the case in the English High Court of Re A (Letter to a Young Person) [2017] EWFC 48 and the decision by Sheriff Anwar at Glasgow Sheriff Court in Patrick v Patrick [2017] FamLR 128. 

However, currently practice varies immensely, and the majority of court opinions are written in language that is inaccessible to a child, and for that matter to many parties to actions. The provision must be mandatory in order for practice amongst the Judiciary to change and for our court system to comply with the principles of UNCRC. 

The Bill documents are available on the Scottish Parliament Justice Committee website here.

Read Clan Childlaw’s submission to the Justice Committee about the Bill here