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Background Info

It states in the UN Convention on the Rights of the Child, Article 3. “The best interests of the child must be a top priority in all decisions and actions that affect children.”

Also within the Family Law (Scotland) Act 2006 it can be noted that the welfare test (also known as the “best interests” test) which is used by courts to make decisions about parental rights and responsibilities – usually decisions about residence and contact – has been amended.

The court time spent in some CWH is detrimental to both parents and the child involved.

The Sheriffs presiding in CWH try and resolve issues surrounding contact as best they can. However, it is sometimes impossible when a few CWH become adversarial and protracted which is not in the best interest of the child.

The modernisation of Scotland’s civil justice system was undertaken by Lord Gill. Lord Gill recommended substantial changes to modernise and improve the structure and operation of the courts, which he described as “slow, inefficient and expensive”.

Lord Gill and his Project Board delivered the report on the review of Scottish Civil Courts in 2009. On 6 February 2014 the Courts Reform (Scotland) Bill was formally introduced in Parliament by Kenny MacAskill and the Royal Assent was received on 10 November 2014.

I noted also with interest that within the Scottish Civil Courts Review Bill 2014, family courts were to be looked at. However, it is not clear if the term family courts encompasses both Children’s Hearing System and the Child Welfare Hearings.

I therefore feel if the Child Welfare Hearings are not included within the changes then they should be.

I have highlighted some changes/recommendations which I feel would be of benefit to all court users using Child Welfare Hearings.

My recommendations regarding procedures which should happen during CWH are:-

• Minute taking or recording what is said at CWH’s and made available to each Sheriff who presides over a particular case. This would fit in with what Lord Gill’s review proposed, regarding the development of the modern methods of communication and case management.

• Recording or Minute taking may lessen the need for numerous CWH going over old ground again and again. It would also assist Sheriffs who are not familiar with the case to have a background on what has gone on before during CWH, rather than an interlocutor detailing only the outcome of the CWH. This is even more important since this would also have particular regard to the cost of litigation to parties and to the public purse.

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