The Children (Scotland) Act 2020 was passed by the Parliament on 25th August 2020 and received Royal Assent on 1st October 2020. With its passing and assent, significant changes were made to the main piece of legislation that covers Parental Rights and Responsibilities: The Children (Scotland) Act 1995.
The policy objectives of the Act 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; and
• further compliance with the United Nations Convention on the Rights of the Child (UNCRC) in family court cases.
The relevant changes for those in cases and negotiations concerning s.11 Orders are as follows:
1. Regards to the child’s views
These amendments remove a presumption that a child aged 12 or over is considered mature enough to give their views. This will ensure that younger children who are capable of forming a view and who may wish to give their views are able to do so. The presumption being removed covers both when a court or a children’s hearing is making a decision that concerns the child.
The changes mean that the decision maker (in our case, the Sheriff or Judge) has to give a child an opportunity to express their views, in a manner suitable to the child, on key decisions that may affect them, such as who they should live with or have contact with. This will require the Sheriff seeking the views to consider a wide range of options, including options which may be more suitable to younger children such as drawing a picture.
The reference in the new provisions to “in a manner suitable to the child” also requires the Sheriff to take into account the preferences of the child on how they wish to give their views. It is acknowledged that in limited circumstances a child may not be able to give their views. This includes where the child is not capable of giving views due to being very young or having severe learning disabilities and where the location of the child is unknown.
When the views of the child have been obtained, the Sheriff is required to have regard to the views taking into account the child’s age and maturity. This is has not changed from before.
2. Vulnerable Witnesses and parties
This is a most welcome change since it has been observed that many perpetrators of domestic abuse continue to use the Courts as an extension of this abuse. Whereas the criminal procedure is clear and well-trodden, this is not the case for Contact/Residence cases. The vulnerable witness provisions (although applicable to civil cases) are not designed for that procedure and are rarely used, even when absolutely appropriate. The changes allow (in s.11 cases only) measures such as use of a live television link, use of a screen and supporters. A person will be deemed to be a vulnerable witness where it is alleged in the statement of grounds that the person is the victim of specified conduct.
Section 7 inserts section 11B to the 1995 Act authorising the court to order the use of special measures to reduce distress to vulnerable parties which may be caused by attending or participating in hearings. New section 11B(2) provides that the new measures for vulnerable parties relate to proceedings in which the court is considering, or has considered, whether to make an order under section 11(1) of the 1995 Act. This provision is specifically aimed at Child Welfare Hearings which are generally non-evidential and where the existing special measures in the 2004 Act for vulnerable witnesses will be of little assistance.
Not only does it extend protection to vulnerable witnesses but also protects against abusive parties who are party litigants (running their own case without a solicitor). If the party cannot provide a solicitor then pone will be appointed from a register.
The Vulnerable Witnesses (Scotland) Act 2004 has been amended to include a section 11A.
3. Child welfare reporters and curators ad litem
Although this change will take some time to be implemented, it is again welcome. As way of background, Child welfare reporters provide reports to the courts on a child’s welfare. At the moment, child welfare reporters are usually family lawyers but some are social workers. Curators ad litem can be appointed by the court to represent a child’s interests in the litigation.
There will be a register of Reporters and Curators established in due course. These registers are to be used when the court wishes to appoint a child welfare reporter or curator ad litem in cases under section 11 of the 1995 Act. Furthermore, the Scottish Ministers will determine eligibility criteria for membership of both registers, to establish the procedure for removing an individual from either list if the individual does not meet the required standards and the procedure for handling complaints about both child welfare reporters and curators ad litem.
4. Contact Centres
Child contact centres are venues for conflict free contact between children, parents and other people in the child’s life. Centres offer a mixture of supported and supervised contact. Supported contact is where there is no significant risk to the child. Supervised contact is where contact takes place in the constant presence of an independent person who observes and ensures the safety of those involved. Centres also offer a handover service which allows a child to move between parents without the parents have to see each other.
The main change is that where a court has ordered contact or a handover to take place at a child contact centre, this must be at a regulated centre. Similar to above, minimum standards will be set that must be adhered to: accommodation and staff training that a contact centre needs to meet in order for the courts to be able to order contact to take place there.
The provision means that if a court considers that contact or handover at a contact centre is in the best interests of the child then the court would be required to either state that the contact has to be at a registered centre or name the registered centre at which the contact is to take place. The court could not order contact to take place at a centre which was unregistered.
5. Clarification of order-making power
Section 11 aims to capture the effect of the Inner House of the Court of Session decision in the case of Knox v S  CSIH 45, in addressing the question of whether the requirement that an order under section 11(2) of the 1995 Act must be “in relation to” parental rights and responsibilities (PRRs) means that the order itself must involve the granting or withdrawing of PRRs.
In Knox v S, the Inner House held (paragraph 45) that “residence orders and contact orders, and indeed specific issue orders…. could properly be described as ‘orders in relation to’ parental responsibilities and rights in so far as they relate to matters encompassed in such responsibilities and rights and are likely to affect the exercise of such responsibilities and rights by anyone who has, or who might obtain, them.” The court found (paragraph 42) that “it is plain that certain persons who cannot apply for an order imposing or granting parental responsibilities and rights can apply for residence or contact orders” under section 11(2) of the 1995 Act.
The amendment allows for contact orders to be sought and granted in cases where the Pursuer or minuter is not entitled to Parental Rights and Responsibilities Orders. This opens the scope for under 16s to seek contact with siblings as well as over 16’s being able to do so without having to seek parental R&Rs. Essentially, the amendment puts beyond doubt the remit of s.11 beyond just parents of the child in question.
6. Factors to be considered before making order
The Children (Scotland) Act 1995 is amended as follows.
(2)In section 11ZA (paramountcy of child’s welfare, and the non-intervention presumption) (which is inserted by section 1(4) of this Act), in subsection (3) after paragraph (e) insert—
“(f) the effect that the order the court is deciding whether or not to make might have on—
(i) the involvement of the child’s parents in bringing the child up, and
(ii) the child’s important relationships with other people.”.
The list of factors, to which section 12 adds (the other factors being those related to protection from abuse, which are currently stated in section 11 (7A) to (7C) of the 1995 Act), is not hierarchical. Nor is it an exhaustive list of the matters the court should take into consideration when making an order under section 11(1) of the 1995 Act. The factors must be considered only as part of all the relevant factors and circumstances arising in each case. Factors other than those specified on the list can be given greater weight when coming to a decision. The paramount consideration remains the welfare of the child.
7. Explaining of decisions to the child
The new s.11E of the 1995 Act gives the court a duty in certain circumstances to explain various decisions in respect of orders under section 11 of the 1995 Act to the child concerned.
A family action may involve a number of Child Welfare Hearings. It would not be necessary for the court to arrange for the decision of every Child Welfare Hearing to be explained, given the terms of section 11E(3)(b). Decisions caught by the provisions would include decisions which establish or amend contact arrangements. If the court decides that a decision should be explained to a child then it can either explain it face to face, electronically or by letter or it can appoint a child welfare reporter.
8. Failure to obey and order
If an order under section 11 of the 1995 Act is not complied with, a person seeking to enforce the order may go back to court. In going back to court, the person may seek a variation of the order or may seek to hold a person in contempt of court for not complying with a court order.
Under section 15(2) of the Contempt of Court Act 1981, where the contempt is dealt with by the sheriff in the course of or in connection with proceedings other than criminal proceedings on indictment, the penalty for contempt is a maximum of three months’ imprisonment or a fine of level 4 on the standard scale (currently £2,500) or both.
When a court is considering whether or not to hold someone in contempt, the standard of proof is beyond reasonable doubt2, as in criminal proceedings. However, any imprisonment ordered by the court is civil imprisonment and the contempt proceedings themselves are not criminal.
The new amendment puts a duty on the Court to “investigate” before any other remedy.
The new section 11F provides that, where the court is made aware that a party has not complied with an order under section 11 of the 1995 Act, then it has a duty to investigate why the order has not been complied with.
Provision is also made so that the court may appoint a child welfare reporter to help investigate why an order has not been complied with. Section 8 of the Bill makes provision for the regulation of child welfare reporters.
The existing options of seeking a variation of an order or seeking to hold someone in contempt of court remain if someone breaches an order.