Law covering parental disputes goes out to review

Prioritising children’s interests in family disputes when parents separate is the theme of a new Scottish Government consultation paper published today.

Ministers have opened the review of the Children (Scotland) Act 1995 on parental responsibilities and rights, and contact and residence cases involving children, promised in their current Programme for Government. 

The Scottish Government is seeking the public’s views on issues including:

• how the court obtains the views of the child in family cases;
• protection of victims of domestic abuse and their children during family court proceedings;
• regulation of child contact centres and of child welfare reporters;
• how children can maintain relationships with key adults in their lives, including grandparents, and with siblings if they are looked after away from home;
• enforcement of court orders regarding contact;
• alternatives to court such as family mediation and other forms of alternative dispute resolution; and
• aspects of the children’s hearing’s system, including rights of parties taking part and increased use of IT.

The consultation also asks for opinions about changes to the law to prevent direct cross-examination of victims of domestic abuse by their alleged abusers in child contact cases before the civil courts.

Other topics include recovery of documents in cases under s 11 of the 1995 Act, parentage disputes and presumptions regarding parents; jurisdictional issues in cross-border cases within the UK, child abduction by parents, birth registration, and domicile of persons under 16.

Legal Affairs Minister Annabelle Ewing commented: "We know that family breakdown can be very upsetting for children and it is our responsibility to ensure that the family justice system is supportive and does not contribute to their distress. That means putting the best interests of the child first in every case and feedback from this consultation will help us to identify where changes are needed.

"The often sensitive issues involved can give rise to competing viewpoints, and that is why we are looking for as wide a range of responses as possible to help shape the future of family law in Scotland.

"In this Year of Young People I am particularly keen to hear the views and first-hand experiences of children and young people and we have produced child-friendly questions to encourage them to get involved."

Click here to access the consultation. The deadline for responses is 7 August 2018. In addition to a separate set of child friendly questions, there will also be a series of engagement events with children and young people after the school summer holidays, views from which will be taken into account in the analysis of consultation responses.

Faculty welcome

Welcoming the review, Janys Scott QC, chair of the Advocates' Family Law Association, said: "A family justice review that looks at how we take decisions about children, as well as what decisions we make, is more than welcome. As advocates, we are only too well aware that there is room for improvement and we will be pleased to contribute to the review.

"One of the principal concerns must be about timescales. Children are growing and developing. Decisions have to be taken in time to be helpful to them.

"It is pleasing to see that young people are being encouraged by the Scottish Government to be involved in this consultation, and that their views will be fully considered consistent with the United Nations Convention on the Rights of the Child."