The Justice Committee published its report on the Children (Scotland) Bill on 1st May 2020. The Committee recommends to the Parliament that the general principles of the Bill be approved. Here are the Committee's recommendations, copied from the Report:  


Recommendations relating to the 1995 Act in practice

Research and data on parenting disputes

Recommendation: We welcome the Scottish Government's commitment in the Family Justice Modernisation Strategy to improve the quality of family law statistics and wider evidence base in Scotland. The Scottish Government should, in its response to this report, provide the Committee with an update on this work.

Recommendation: The Scottish Government should continue to work with the Scottish Courts and Tribunals Service (SCTS) and other relevant agencies to improve the collection and availability of data in relation to parenting disputes (section 11 cases). This should include reviewing current guidance from the SCTS on access to historical court records, with a view to reversing the current restrictions.

Recommendation: The Scottish Government should commission further research to explore the experiences of families who resolve parenting disputes outwith the court system. The Scottish Government should also commission research in cases where domestic abuse or other serious child welfare concerns are not a factor. This will help policy-makers develop an understanding of what is happening across a broader range of cases

Resolving disputes out of court

Recommendation: As we previously recommended, the Scottish Government and the Scottish Legal Aid Board should explore making legal aid available for other forms of ADR. We are disappointed that no progress appears to have been made in this area in the near 18 months since our report on ADR was published in October 2018. The Committee recommends that the Scottish Government provide an explanation for the delay and details on its plans to progress this matter.

Recommendation: Again, as we previously recommended, mandatory dispute information meetings should be piloted, with an exception for domestic abuse cases. We fully recognise that any move towards greater use of ADR must ensure that victims of domestic abuse and their children are not put at risk. However, outwith those cases, we believe that there are potentially significant gains to be made through early recourse to ADR, thereby helping families to avoid the often-damaging adversarial court process.

The role of the court

Recommendation: The Committee asks the Lord President to reflect on this evidence and to provide further details on how the training needs of the judiciary will be assessed and met in relation to the areas covered by the Bill.

Recommendation: The Committee also asks the Lord President to provide his view on whether there could and should be greater judicial specialisation in family cases.

Drafting of the Bill

Recommendation: The Scottish Government should consider bringing forward amendments at Stage 2 to simplify the drafting of the Bill. It is an important principle that, insofar as it is possible, legislation passed by the Parliament should be clear and understandable.

Recommendation: The Scottish Government should also therefore provide details on how it will ensure that Part 1 of the 1995 Act, if amended as proposed by the Bill, is clear and understandable to members of the public seeking advice about a family law dispute.  


Children's participation in decisions affecting them

Removal of the 12+ presumption in relation to children's views

Recommendation: The Scottish Government should bring forward amendments at Stage 2 which address the concerns expressed to the Committee and will ensure that the views of all children, regardless of age, are heard.

Recommendation: No child should ever feel under pressure to express a view. The Scottish Government should therefore amend the Bill at Stage 2 to make it clear that it is up to the child whether to express a view, as is currently clear in the 1995 Act

How children's views are heard

Recommendation: The Scottish Government should before Stage 3 bring forward more detailed proposals on how it will ensure that the necessary infrastructure and resources are in place to support children, including very young children, to give their views. This may require the Government to revisit the estimates in the Financial Memorandum, which currently only covers the costs associated with children giving their views directly to a sheriff or child welfare reporter, and not via any other method which may be more appropriate.

Recommendation: The Scottish Government should amend the Bill at Stage 2 to provide for a review of the impact of the Bill on children's participation after three years following the commencement of the relevant provisions.

Recommendation: The Scottish Government should commit to ensuring that children's advocacy is available to all children involved in cases under section 11 of the 1995 Act. The Government should before Stage 3 bring forward more detailed plans and timescales on the work it plans to undertake to meet this commitment.

Recommendation: The Scottish Government should work with stakeholders including children's organisations, the legal profession and the judiciary to develop guidance for decision-makers on options for taking children's views. This guidance should be reviewed regularly to ensure that it reflects current best practice.

Recommendation: The Scottish Government should amend the Bill at Stage 2 to make it clear that decision-makers should ask children how they wish to express their views.

12+ presumption for instructing a solicitor

Recommendation: The Scottish Government should amend the Bill at Stage 2 to remove the presumption in relation to instructing a solicitor.

Explanation of decisions

Recommendation: The Scottish Government should before Stage 2 set out how it will address the practical issues raised about the duty in section 15, particularly by the judiciary. This should include further details on how it will ensure that the courts have sufficient resources to fulfil this duty.

Recommendation: The Scottish Government should also consider whether to amend the Bill at Stage 2 to allow for greater flexibility over the methods that could be used by the court to fulfil its duty to explain decisions to children.


Welfare of the child

A checklist approach

Recommendation: The Scottish Government should bring forward amendments at Stage 2 to expand the list of factors in section 12 to include those suggested by the UN Committee on the Rights of the Child.

Recommendation: The Scottish Government should amend the Bill at Stage 2 to add at the end of any list "and any other relevant factor", to make it clear that all circumstances of the case should be considered

The factors in the Bill

Recommendation: The Committee notes the concerns raised by Scottish Women's Aid and others about how the existing factors in the 1995 Act have been reproduced in the Bill. The Committee asks the Scottish Government to respond to these concerns before Stage 2 and to consider whether the Bill should be amended to reflect the definition of domestic abuse in the Domestic Abuse (Scotland) Act 2018, which includes coercive control. The Government should also consider amending the Bill to keep all factors in one section, rather than split across different provisions.

Contact with grandparents

Recommendation: The Scottish Government should before Stage 2 provide further details on the steps it intends to take to promote the Charter for Grandchildren.

Recommendation: Training and guidance for child welfare reporters (a topic discussed in more detail in the next section of this report) should emphasise the importance of exploring a child's wider family relationships and support networks


Court-appointed officials

Local or national lists

Recommendation: The Scottish Government should explore with the Scottish Courts and Tribunals Service (SCTS) and other relevant stakeholders whether responsibility for managing lists of child welfare reporters and curators could be retained at a local level, alongside national standards on training and qualifications. This should include consideration of the potential cost and other resource implications of such an approach compared with managing the lists centrally.

Training for child welfare reporters

Recommendation: The Scottish Government should undertake a more thorough assessment of the training needs of child welfare reporters and fully consult on the proposed training requirements before bringing forward secondary legislation to give effect to the new regulatory scheme.

Recommendation: Children and young people should be involved in the development of training for child welfare reporters.

Skill set of child welfare reporters

Recommendation: The Scottish Government should before Stage 2 provide further details on the steps that it will take to encourage other professionals, such as social workers and psychologists, to act as child welfare reporters. This should include working with relevant professional bodies to ensure, for example, that resources are available to allow people to undertake the necessary training

Fees for child welfare reporters

Recommendation: We welcome the Minister's commitment to reflect on the evidence to the Committee on fees for child welfare reporters. Fee rates for child welfare reporters should be set in a way that will attract good quality professionals, while still representing an efficient use of public resources. Any system for fees should ensure that we do not reduce the number of professionals available for this important role or create perverse incentives that, for example, reward the length rather than the quality of a report. The Scottish Government should consult fully on the proposed fee rates.

The appointment of curators

Recommendation: The Scottish Government should amend the Bill at Stage 2 to respond to the concerns raised about the requirements in section 13 in relation to the appointment of curators. For example, the Scottish Government could remove the requirement to review appointments every six months and replace it with a general requirement to keep any appointments under review.

Choice of procedure for the regulations

Recommendation: The Scottish Government should amend the Bill at Stage 2 so that regulations made under sections 8 and 13 of the Bill are subject to the affirmative procedure.


Vulnerable people in the courtroom

Recommendation: The Scottish Government should undertake a review of special measures to ensure that, where possible and appropriate, the approach to children and vulnerable individuals is the same across all criminal and civil proceedings, including children's hearings themselves.

Recommendation: The Scottish Government should work with the Law Society of Scotland and other relevant stakeholders to address the practical issues raised in evidence to the Committee about the register of solicitors to act for litigants who have been prohibited from conducting their own case.

Recommendation: When recruiting solicitors for the register, the Scottish Government must ensure that representation will be available for litigants across all areas of Scotland.

Recommendation: The Scottish Government should ask the SCTS to review the facilities available to implement special measures in child welfare hearings and, if necessary and requested by the SCTS, provide additional resources to ensure that cases are not delayed.


Contact centres

Recommendation: The Scottish Government should before Stage 2 provide details on how it will ensure that sufficient funding will be available for contact centres to meet both their existing level of service provision and the new regulatory requirements (including improvements to premises and additional training).

Recommendation: The Scottish Government should before Stage 2 provide the Committee with an update on its ongoing discussions with Relationships Scotland about securing a sustainable funding arrangement for child contact centres in Scotland

Recommendation: The Scottish Government should before Stage 2 set out its detailed response to the recommendations made in the Care Inspectorate's feasibility study report.

Recommendation: The Scottish Government should amend the Bill at Stage 2 so that referrals to contact centres from other sources, including solicitors, must be to a regulated centre.

Recommendation: The Scottish Government should work with the Scottish Courts and Tribunals Service, Scottish Women's Aid, Relationships Scotland and others to address the concerns raised about the safety of court referrals to contact centres. This should include piloting and evaluating the use of domestic abuse risk assessments by the courts when making decisions about contact. This work should also include exploring how to improve the information provided by the courts to contact centres at the point of referral about the detailed circumstances of a case, particularly where it involves domestic abuse.


Breaches of court orders

Recommendation: The Scottish Government should before Stage 2 set out further details as to why it considers the provision in section 16 of the Bill is necessary and, in particular, any empirical (not anecdotal) evidence it has to support this view. The Scottish Government should also set out how it will address the concerns expressed by the judiciary and others, namely that section 16 could encourage people to disobey court orders in order to reopen issues already decided by the court.

Recommendation: If section 16 of the Bill is retained, the Scottish Government should amend it at Stage 2 to make it clear that, as part of any investigation, the views of the child or children involved should be sought, where they wish to give their views.

Alternative approaches

Recommendation: The Scottish Government should before Stage 2 provide details on the steps it will take, as part of its wider commitment to support the use of ADR, to encourage where appropriate people to use ADR to resolve issues around breach of contact orders.


Delay in disputes affecting children

Recommendation: The Scottish Government should respond to the concerns raised about section 21 of the Bill and provide details of other measures that will be taken to address the root causes of delays in family cases. Going forward, the Scottish Government should provide regular updates to the Committee on the progress of these measures, including the new case management rules being developed by the Scottish Civil Justice Council. 


Contact with siblings

Recommendation: The Scottish Government should before Stage 2 provide further details on how the changes which will result from the Independent Care Review will enable local authorities to fulfil the duty in section 10 of the Bill. This should include information on proposed timescales and specific budgets that will be provided to individual local authorities for the purposes of promoting sibling contact.

Recommendation: The Scottish Government should work with COSLA and others, such as Stand Up For Siblings, to assess what measures are required in the short term to implement section 10 of the Bill. This should include an assessment of any additional resources required by local authorities.

Recommendation: The Scottish Government should amend the Bill at Stage 2 to remove the "practicable" qualification from section 10.

Recommendation: The Scottish Government should amend the Bill at Stage 2 to remove references to "half-blood" and "whole-blood" from section 10.


Parental rights and responsibilities

Recommendation: The Scottish Government should before Stage 2 respond to the conclusions in Dr Barnes Macfarlane's report on PRRs for unmarried fathers and, in particular, provide further details as to whether it considers that the current law complies with its human rights obligations under the ECHR and UNCRC.

Recommendation: The Scottish Government should also consider whether a discretionary power for the courts to order DNA testing would provide a useful mechanism to address some of the issues identified in Dr Barnes Macfarlane's report, including ensuring that a child's right to know his or her identity is respected.

Language associated with parental rights and responsibilities

Recommendation: The Scottish Government should before Stage 2 respond to the concerns raised about the current terminology associated with PRRs.


Read the full report here.