Children Act ripe for law reform, charity claims
An overhaul of the law relating to childcare disputes should feature in the Scottish Law Commission's next work programme, according to national charity Shared Parenting Scotland.
Responding to the Commission's invitation for views on what to include in its Eleventh Programme of Law Reform, which will guide its work for 2023 and following years, Shared Parenting Scotland has called for it to address the "Heath Robinson complexity" of Scottish family law relating to parents, children and guardians in Part 1 of the Children Scotland Act 1995.
In its submission the charity states that although the Act was a good example of clear and understandable drafting when it was passed, but revisions introduced through the Family Law (Scotland) Act 2006, the Children (Scotland) Act 2020 and other legislation have resulted in "an unduly complex piece of law which is hard to follow for parties and leads to inconsistency in application across jurisdictions and between sheriffs".
On top of that, the groundwork for the Act was completed more than 30 years ago at a time when the perception of both mothers and fathers about their role, and children's experience of how their parents in practice share their responsibilities, were very different, with massive economic and cultural change over the period since.
Shared Parenting Scotland National Manager, Ian Maxwell commented: "Our casework shows troubling inconsistency in, for example, what parental rights and responsibilities means for both parents in modern Scotland. Sheriffs and lawyers who practise in family cases quote the 'paramount' principle – that the interests of the children are paramount – but there is a perception among many parents that the phrase has lost much of its meaning.
"A clarified law would help parents understand their shared obligations to their children in major decisions. It would reduce the 'winner takes all' approach of some 'resident parents' that undermines the role of the other parent in the eyes of their children as well as within schools, health providers and other public services.
"As one of the key pieces of legislation affecting children, we suspect the current complexity and lack of clarity is not compliant with the United Nations Convention on the Rights of the Child (UNCRC). In particular article 42 states that governments must actively work to make sure children and adults know about the Convention so they can understand and pursue their rights."
Mr Maxwell concluded: "We would suggest that this type of legislation is best expressed in a codified form in order to provide a far clearer and more comprehensive account of what parents and children are expected to do and what they can expect from our family justice system."