SCOTLAND Trends and Developments Contributed by: Jenny Jarman-Williams, Turcan Connell
Child law The Children (Scotland) Act 2020 (the “2020 Act”) was passed by the Scottish Parliament in late 2020, although many of its provisions have yet to enter into force. The timeline remains unknown and does not appear imminent. If/ when it does come in to force, it will introduce notable changes. • As things stand, the position is that all children should be given an opportunity to express a view in any court action relating to their welfare. There is a presumption that a child aged over 12 is mature enough to do so, although this is increasingly being extended to younger children. Once their view has been expressed, the court then determines how much weight to give to their views consider - ing the child’s age and maturity. The 2020 Act will change this. It provides that all children, regardless of age, may be capable of provid - ing their views in some manner and ought to be given the opportunity to do so. The method will be determined by the child and will vary. They might speak to a child welfare reporter or use a less formal approach such as writing a letter, or drawing, via play therapy or they may record a video. This will be child led. The court will only stipulate how their view is to be ascertained if the child does not express any preference or if the method sug - gested by the child is impractical. The court may determine that a child is too young or immature to provide a view. A child also can - not be forced to provide a view against their wishes. Once the child’s views are known, the court will, as they do now, determine how much weight should be given to them. • In cases where abuse is a factor, the 2020 Act states consideration should be given to the ability of the person who committed the abuse to care for the child. The court will
also need to consider how any order made might affect the ability of a parent to care for the child and consider the impact that abuse might have on anyone who would need to interact with the abuser in order to facilitate the contact ordered by the court, most com - monly at handovers. How the abuse or risk of abuse will affect the care arrangements for the child must be given careful considera - tion. Abuse will include physical, verbal and emotional abuse. • At the moment when the court makes a deci - sion about a child, they inform the parties, and they then tell the child. Once in force, the Act requires the judge to ensure that their decision(s) are explained to the child. That may be done by the judge themselves or by the child welfare reporter, if there is one. The only time that it is not required is if the child would be incapable of understanding the decision, if it would not be in their best inter - ests to be provided with an explanation, or if the child’s whereabouts are unknown. • The 2020 Act provides that if the court accepts that there has been a failure to comply with an order relating to the care of a child, the court must establish why that hap - pened. The court will be obliged to seek the views of the child before deciding whether to hold the person who failed to comply in contempt of court and/or to vary or recall the order. • The 2020 Act provides that the local authority must take steps to promote personal relation - ships and facilitate direct contact between a looked-after child and their siblings. The local authority will also be obliged to ascertain the views of siblings (and, where they have an ongoing relationship, anyone else the child has lived with where the relationship has the character of a sibling relationship) before
268 CHAMBERS.COM
Powered by FlippingBook