This blog post looks at the Children (Scotland) Act 2020, an important piece of Scottish Government legislation from Session 5 of the Scottish Parliament. For the most part, the Act is unimplemented, and it is unclear when it will be brought fully into force. This is likely to be disappointing to some stakeholders.
When parents separate or divorce, or indeed have never lived together, disputes about the care of children can arise. The Children (Scotland) Act 1995 (‘the 1995 Act’) is the main legislation on parenting and on parenting disputes.
The aim of the Children (Scotland) Act 2020 (‘the 2020 Act’) is to update the 1995 Act and address a collection of potential issues associated with it. For example, some stakeholders have argued that the views of the child need to be heard more effectively in any court dispute which affects them.
Background – the Children (Scotland) Act 1995
The 1995 Act sets out various parental responsibilities and rights, often known as PRRs, in respect of children living in Scotland. These enable parents to take both significant and day-to-day decisions about their children’s lives, for example, where their children live and where they go to school.
Crucially, the 1995 Act also enables parenting disputes about such issues to be resolved through the courts.
The Children (Scotland) Act 2020
The 2020 Act sets out a range of changes to the 1995 Act and, in some instances, to other family law legislation. In particular, it:
- Tries to help children to participate in court decisions about them and encourages the court to hear the views of younger children (under 12s) before reaching its decision.
- Imposes a duty on the court to investigate why a parent has failed to follow a court order, an issue which can present difficulties for parents in practice.
- Places a duty on the court to consider the risks to a child’s welfare of delay in a court case. Delays in cases under the 1995 Act have previously been flagged by senior judges as an important issue.
- Obliges the Scottish Government to take further steps to promote a collection of methods for resolving disputes out of court, known as ‘alternative dispute resolution’ or ‘ADR’.
- Provides for statutory regulation of two important bits of the ‘machinery’ surrounding the 1995 Act, namely child welfare reporters and child contact centres. Note that this provides the high-level policy commitments only. The crucial detail around regulation must be fleshed out in secondary legislation.
Child welfare reporters
Child welfare reporters are court-appointed officials, often solicitors from private practice. Their reports about the welfare of a child, and the views of a child, can be critical in helping the court reach a decision in an individual case.
Prior to the 2020 Act, concerns had been expressed about child welfare reporters. The 2020 Act responds to criticisms including: a) very variable fees charged by reporters for their work; b) the recruitment process for reporters; and c) the training they receive.
In 2021, there was a Scottish Government consultation on the detail of the regulatory scheme, a key part of which is the proposed new national register of child welfare reporters. In the responses, a key issue was a lack of consensus on which body should run this register.
Child contact centres
Child contact centres are run by the voluntary sector, of which Relationship Scotland is a major provider. Courts or solicitors can refer families, or families can self-refer, for what is known as supervised or supported contact with a parent at a centre.
A high-profile petition considered by the Scottish Parliament between 2017 and 2019 raised important questions about the courts’ approach to contact arrangements where there is a risk of abuse. This included the role played by child contact centres.
An aim of the 2020 Act is to set minimum standards in legislation in relation to training of staff and accommodation for such centres. This is part of a wider drive in the 2020 Act to better protect families affected by domestic abuse.
In 2021, there was also a Scottish Government consultation on how precisely how child contact centres should be regulated. There was majority support for the Scottish Government’s ideas in this area.
What next for the Children (Scotland) Act 2020?
At the time the legislation was going through Parliament, April 2023 was given as the date when the regulatory schemes for child welfare reporters and for child contact centres would become operational.
Child welfare reporters
The Scottish Government recently explained to SPICe that regulation of child welfare reporters has been delayed by budgetary constraints.
Knock-on effect on other parts of the 2020 Act
The Government thinks this delay will impact on the timing of implementation of several other areas of the 2020 Act as well. It commented:
“the 2020 Act contains cross-references to the register of child welfare reporters; some of the provisions may depend operationally on the register being up and running; and some of the changes planned by the 2020 Act are interlinked.”
The Scottish Government gave three examples of other parts of the 2020 Act it thought would be affected in this fashion:
- the provisions to help children better participate in court proceedings
- the duty on the court to investigate when court orders are disobeyed
- the duty on the court in the 2020 Act to consider the impact of delay in cases under the 1995 Act.
On the issue of delays in cases under the 1995 Act, it is worth noting that new court rules will come into effect this month. The rules encourage courts to actively manage cases and will hopefully also be a means for encouraging the speedier resolution of cases.
Child contact centres
On child contact centres, the prospects for implementation appear to be more positive. The Scottish Government has been discussing the regulation of child contact centres with the Care Inspectorate, its preferred regulator.
The Scottish Government has indicated to SPICe that it plans to lay secondary legislation on the regulation of child contact centres later this year or early next year.
Resolving disputes out of court
On methods of resolving disputes out of court (ADR), the Scottish Government is required to regularly report to Parliament on its ongoing work in this area, and it did so most recently in April of this year. Despite the ongoing work this report details, it also acknowledges that, for the time being, the Scottish Government has not fulfilled its statutory duties to promote ADR in family cases.
At this point in 2023, the complete implementation of the 2020 Act still appears to be some way off.
Back in April 2022, Children 1st and an academic specialist in children’s rights said to the Equalities, Human Rights and Civil Justice Committee how keen they were that the 2020 Act comes into force. Children 1st said:
“We are champing at the bit for the provisions in the 2020 Act to be implemented. That cannot come soon enough for us.”
If these views are shared by the wider policy and academic community, the current situation with the 2020 Act is likely to be disappointing for some stakeholders.
Sarah Harvie-Clark, Senior Researcher (Civil Law), SPICe