Children (Scotland) Act 2020

Clan Childlaw closely followed the passage of and gave our views on the provisions of the Children (Scotland) Bill. When the Scottish Parliament passed the Bill on 25th August 2020, we warmly welcome it in a statement here and wrote a blog highlighting some of the changes the Children (Scotland) Act 2020 will bring for children and young people here.

We are delighted the Act introduces legal duties on local authorities to promote sibling contact and ascertain the views of siblings, and a duty on children’s hearings to consider sibling contact, meaning children in care who are not living with their brothers and sisters must be supported to maintain those relationships. Clan warmly welcomes the amendments agreed to the Children’s Hearings (Scotland) Act 2011 which will enable an individual to participate in a children’s hearing when they are not a “relevant person” but meet certain criteria as a qualifying sibling or relative.

Here is an overview of proceedings and links to our evidence.

Children (Scotland) Bill passes Stage 3 on 25th August 2020

The Scottish Parliament passed the Children (Scotland) Bill with a final vote on the Bill on 25th August. Read the Bill as passed here. Read the Official Report of the debate in the Chamber here. The minutes of proceedings here include a record of which amendments were voted for and which against.

An amendment lodged by John Finnie MSP on establishing a system of redress was not agreed to. Liam McArthur MSP did not move his amendment on making equally shared parenting the starting basis for residence orders. Amendments agreed by MSPs at Stage 3:

When the child’s views are sought in family court cases and other proceedings under the Children (Scotland) Act 1995, children’s hearings, exclusion order proceedings and permanence and adoption cases, the child’s preferred method of giving their views is to be used unless it is not reasonable to do so or the child has not expressed a preferred method of giving their views

Scottish Ministers will have to review the ability of children to effectively participate in the above-mentioned proceedings, no later than 5 years after Royal Assent

When considering making an order under section 11(1) of the Children (Scotland) Act 1995 courts must consider the appropriateness of ‘cooperation’ beyond parents (strengthening the Bill’s protection for survivors of domestic abuse)

New drafting of section 13B (which was added to the Bill at Stage 2) on the courts’ duty to consider the child’s best interests when allowing access to information about children (amendments 36, 46)

Further protection to vulnerable parties in evidential and non-evidential hearings, in particular child welfare hearings, and to vulnerable witnesses when a case under section 11 of the 1995 act reaches proof (amendments 37-39)

Regulation of Child Welfare Reporters: Ministers must consult people with lived experience of domestic abuse and court-ordered contact on draft regulations

Regulation of contact services: the regulator, once appointed, will have power to issue reports on any failure, or possible failure, by a contact service provider to comply with Equality Act 2010, in particular any duty to make reasonable adjustments to premises to facilitate their use by disabled people

New duty on solicitors to refer their clients to a regulated contact service – if a solicitor fails to comply, this may be treated as professional misconduct or unsatisfactory professional conduct (section 9ZA of Bill)

Changes to definition of sibling in Bill – removal of reference to “half-blood” and “whole blood”; replaced by “two people are siblings if they have at least one parent in common” (see Stand Up for Siblings Stage 3 Briefing on this)

Funding for alternative dispute resolution (s16A) and Pilot scheme for mandatory alternative dispute resolution meetings (s16B) – improvements to amendments passed at Stage 2

Technical amendments to section 15A, which was introduced at Stage 2 to place a duty on Ministers to ensure availability of child advocacy services in proceedings in which a court is considering making an order under section 11(1) of the Children (Scotland) Act 1995

<Children’s hearings: opportunity to participate – changes to Children’s Hearings (Scoand) Act 2011 to enable an individual to participate in a children’s hearing when they are not a “relevant person” but meet criteria as a qualifying sibling or relative

Children (Scotland) Bill passes Stage 2 on 23rd June 2020

The Scottish Parliament passed the Bill at Stage 2 in the Justice Committee meeting of 23rd June. The Bill as amended after Stage 2 can be read here. Ahead of the meeting, Scottish Government responded to the Committee’s recommendations, signalling its intention to bring some but not all of the recommended amendments to the Bill at Stage 2 (view SG response here and here). The Lord President responded to the Justice Committee’s recommendations on the education of the judiciary and judicial specialisation here.

Stage 2 amendments include adding a presumption that all children are capable of forming a view in civil courts and hearings and new provisions on:

consideration of the child’s welfare and best interests in the disclosure of information in section 11 proceedings (section 1A of the Bill) and a duty to consider child welfare when allowing access to information where a court is considering making an order under section 11(1) (section 13A)
a duty on children’s hearings to consider contact with relevant persons and siblings (section 10A) as well as strengthening of the duty on local authorities in section 10 of the Bill to promote sibling contact (for more details see Stand Up for Siblings news item here)<
making legal aid available for alternative methods of dispute resolution (section 11A)
a duty to ensure availability of child advocacy services in section 11 proceedings (section 15A)

Children (Scotland) Bill passes Stage 1 on 27th May 2020

The Scottish Parliament agreed to the general principles of the Children (Scotland) Bill by passing the Bill at Stage 1 on 27th May 2020. Read the debate by MSPs here.

The Committee published its report at Stage 1 of the Bill on 1st May 2020. It recommends to the Parliament that the general principles of the Bill be approved. Read the report here. Read a list of the Committee’s recommendation per subject here.

The Scottish Government responded to the Committee’s recommendations here, signalling its intention to bring some but not all of the recommended amendments to the Bill at Stage 2.

The Lord President – the head of the Scottish Judiciary – responded to the Justice Committee’s recommendations on the education of the judiciary and judicial specialisation here.

Clan Childlaw submitted evidence to the Scottish Parliament Justice Committee which is published here. The Justice Committee took oral evidence on the Bill in December 2019, January and February 2020 – read more on the Committee website here. Clan Childlaw gave evidence on 28 January.

2018 Public Consultation

In May 2018 the Scottish Government opened a public consultation ‘Review of Part 1 of the Children (Scotland) Act 1995 and creation of a family justice modernisation strategy’.

The review was very broad in scope and included sections on obtaining the views of the child in family court actions, contact (including contact with siblings), parentage, parental responsibilities and rights, domestic abuse, and court procedure.

Read our response to the consultation here

We submitted a joint response with Stand Up for Siblings on just the questions relating to siblings.

All consultation responses are published on the Scottish Government Consultation Hub here and along with an Analysis of all the responses.