Thank you for inviting us to speak to you today about the Children (Scotland) Bill. I will give a brief overview of the bill and then we will be happy to answer any questions you may have.
At the time, the Children (Scotland) Act 1995 was seen as groundbreaking. However, we have heard concerns from many children, parents and organisations about how part I of the act works in practice. We consulted last year on reviewing part I. As well as the Children (Scotland) Bill, we published a family justice modernisation strategy in September 2019. The strategy aims to improve the operation of family justice and the culture of the courts in family cases. It sets out our on-going work, plans for secondary legislation and improved guidance and areas for further consideration.
The key policy aims of the bill are to ensure that the child’s best interests are at the centre of any contact and residence case, ensure that the views of the child are heard, further compliance with the United Nations Convention on the Rights of the Child, and further protect victims of domestic abuse and their children in family court proceedings.
On ensuring that the child’s best interests are at the centre of contact and residence cases, section 11(7)(a) of the 1995 act provides that:
“the court ... shall regard the welfare of the child concerned as its paramount consideration and shall not make any order unless it considers that it would be better for the child that the order be made than none should be made at all.”
We have tried to ensure that none of the provisions in the bill cuts across that central principle while, at the same time, taking steps to put the child more at the centre.
Section 8 of the bill introduces a register of child welfare reporters. Those are individuals appointed by the court either to obtain the views of the child or provide a report on the best interests of the child. That will ensure that all child welfare reporters are subject to suitable and consistent qualification and training requirements, so that the best interests of the child are reflected back to the court. Training will cover domestic abuse and coercive control.
Section 16 places a duty on the court to investigate any failure to obey an order under section 11 of the 1995 act. The investigation can be done by a child welfare reporter or by the court itself. Understanding the reasons behind non-compliance with an order could help the court to ensure that the order remains in the child’s best interests.
The second aim of the bill is to ensure that the views of the child are heard. Sections 1 to 3 remove the presumption that a child aged 12 or over is considered mature enough to give their views in a number of circumstances. That includes cases under section 11 of the 1995 act around contact and residence, children’s hearings and adoption and permanence proceedings. The presumption was never intended to restrict children aged under 12 giving their views. However, we have heard that in practice that can sometimes be the case. The intention is for all children who are capable and wish to do so to be able to give their views. Of course, if a child does not wish to give their views, that should be respected. The Scottish Government believes that a child should be able to express their views in a manner that is suitable for them. That may be by completing a form, giving views via an appropriately trained and qualified child welfare reporter or speaking directly to the court.
The third aim of the bill is to further compliance with the UNCRC. The policy memorandum that accompanies the bill provides further information on the relevant UNCRC articles for the bill. In addition, we have published a full children’s rights and wellbeing impact assessment that goes into more detail on that. I will focus on the key areas.
The provisions that I have already mentioned on the best interests and views of the child are relevant to a number of the UNCRC articles, notably articles 3 and 12. Adding two factors to those that the court must consider when making an order under section 11 of the 1995 act is relevant to articles 5, 7 and 18 of the UNCRC. Section 10 aims to strengthen the law in relation to a local authority’s duty to promote contact and personal relations between a looked-after child and their siblings. That is relevant to articles 8, 16 and 20.
The final key aim of the bill is to further protect victims of domestic abuse. The bill looks at two key areas—the stage during a child welfare hearing and the final stage of a case when evidence is led. Section 7 gives the court the power to order a range of measures to assist the parties if attending or participating in the proceedings is likely to cause distress that could be alleviated by the use of such a measure. The measures are similar to existing measures that are available when giving evidence in other civil and criminal cases. Those include screens, live video links and allowing a supporter to be present in a child welfare hearing.
Sections 4 and 5 introduce a new measure into the Vulnerable Witnesses (Scotland) Act 2004, which prohibits a party from personally conducting their case in certain circumstances. The new measure is available in cases under section 11 of the 1995 act or in court proceedings arising out of children’s hearings. If a party is subject to that restriction and is unwilling or unable to appoint a lawyer, one would be appointed by the court from a register of lawyers established by Scottish ministers.
I hope that that brief overview has been helpful. We are happy to answer any questions that the committee has.