Faculty of Advocates advises caution in changing Children (Scotland) Act

The Faculty of Advocates has sounded a note of caution about making changes to an important piece of family law legislation.

The Scottish Government is reviewing Part 1 of the Children (Scotland) Act 1995 which covers parental responsibilities and rights, and contact and residence orders.

In a response, the Faculty said that in its experience, the Act was generally clear, succinct and coherent.

“It sets out a comprehensive structure for parental responsibilities and rights. The welfare of children is at the heart of the Act, which was framed with the United Nations Convention on the Rights of the Child (UNCRC) in mind. It is part of a wider legislative framework. Some caution is required before embarking on change,” the Faculty stated.

“ ‘Good law’ (as defined by the Office of Parliamentary Counsel) is ‘necessary, clear, coherent, effective and accessible’. The 1995 Act largely satisfies this requirement. It is desirable that it should continue to do so.”
One proposal supported by the Faculty is to introduce a provision in primary legislation which specifies that any delay in a court case relating to the upbringing of a child is likely to affect the welfare of the child.

“We endorse the aim of discouraging undue delay in cases involving children…Primary legislation alone may not, however, achieve the desired purpose,” said the Faculty.

Using adoption as an example, the Faculty noted that a statutory requirement to draw up timetables had limited effect, and had been replaced by court rules with specific timetables.

“In our experience, these rules are honoured more in the breach than the observance. Sheriff courts frequently maintain they do not have the resources to give effect to the prescribed timetables,” the response added.
Another suggested change related to children’s views being heard in court cases.

“We are concerned by cases where the child appears to have been manipulated in advance of proceedings by being taken to see a solicitor or other professional to provide views that are then presented as a ‘golden key’ to the outcome sought by the person bringing proceedings. We would like to see this practice halted,” said the Faculty.

“We propose as a solution that the court rules no longer require warrant to intimate to the child but that the issue of giving the child the opportunity to be heard is a necessary feature of an early case management hearing, and that the sheriff or judge determines how this is to be done.”