Fiona Morrison, Lecturer in Child Wellbeing and Protection, Faculty of Social Sciences, University Stirling
Professor Kay Tisdall, Chair of Childhood Policy, Moray House School of Education and Sport, University of Edinburgh
The Children (Scotland) Bill will reform the law that deals with how children participate in decisions about child contact. The Bill promises to improve the legislation’s compliance with the UN Convention on the Rights of the Child (UNCRC), thus in keeping with the Scottish Government’s plans to incorporate the UNCRC in this parliamentary term.
The Bill arises in a context of mounting concern that children’s views are not always heard in disputes about contact. Our research on compliance with children’s participation rights in family actions found the implementation of these rights in disputed contact to be inconsistent and frequently poor. Currently, children are generally not supported to participate through the legal process. There are no routine systems in place to prepare children or explain how the legal system works. There aren’t any routine mechanisms to provide children with feedback about the decisions that are made, or to explain what role their views had in these decisions. Nor are there accessible ways for children to complain or seek redress if they feel their rights have been breached. These problems are partly produced by how our adversarial legal system deals with disputes about contact. It is a system that sees contact as a dispute between adults, that tries to ‘keep children out’ of the dispute and where children rarely have any legal status in the dispute. This means children’s participation rights risk being at the discretion and behest of adults – either their parents or the personnel of courts. And children tell us that their experiences are all too often disempowering and distressing as cases proceed through the legal system.
The drafting of the Bill (following Stage 2) points to considerable and hard-won progress on children’s participation rights. Rather than question children’s capacity, the Bill now means adults need to presume a child has capacity to express a view. The Bill requires the court to explain its decision to a child in a way that the child can understand. It places a duty on Scottish Ministers to ensure the availability of child advocacy services for children – something that children consistently tell us would help the most. These are all hugely significant and welcome measures – and when implemented will improve compliance of family law with the UNCRC.
A Stage 3 amendment laid by John Finnie MSP has potential to bolster children’s rights further – to make rights both real and accessible to children. If passed, the amendment will require Scottish Ministers to introduce a system of redress for children should children feel their participation rights have been breached, a recommendation from our research and in our written evidenceto the Justice Committee. A system of redress would signal a sea change for children’s rights in Scotland – it would introduce a mechanism of accountability for children’s rights. It would afford children’s participation rights greater status. Their rights would be less likely to be treated as discretionary or to be at the behest of adults.
While there is an existing process for appeals this is designed by and for adults – it is not accessible to children. It requires a parent to raise an appeal on behalf of a child or for a child to become party to the dispute and then to access legal aid for their own independent representation. Becoming party to the dispute is not an easy task for a child – especially when their access to legal aid depends upon parental income and children may be expressing views that are contrary to those of a parent.
Without an accessible system of redress, children struggle ‘to claim’ their rights to participate in major decisions that affect their lives. If a child had not been given the choice to give their views, they currently find it very hard to reverse that decision. If a court report is written about a child, the child has no way to disagree with what it says. In our research, some children felt their views were misrepresented or the substance of them had changed in the reporting to court. One child urged those tasked with taking children’s views to, ‘[t]hink about what you are writing. You changed what I said.’ But without an accessible mechanism for redress, children cannot challenge this.
If passed, this amendment will provide family law a solid platform for incorporation of the UNCRC – it will provide a mechanism for accountability for children’s participation rights in family law. As stated in the UN Committee on the Rights of the Child’s General Comment on implementation, ‘[f]or rights to have meaning, effective remedies must be available to redress violations’ (UN Committee 2003: para.24).
This amendment has the potential to make children’s rights real in disputes about contact and to take us a step closer towards incorporation of the UNCRC in Scots law.
This post first appeared on the Children’s Participation in Family Law project blog, on 19 August 2020.
The authors wish to acknowledge the funding provided by the Justice Analytical Services (Scottish Government) for the research project.
The authors would also like to acknowledge the wider collaborative learning that informed this research, children, young people and adults. This includes partnership research, Improving Justice in Child Contact (funded by the European Union’s Rights, Equality and Citizenship Programme (2014-2020).
 UN Committee, Committee on the Rights of the Child, General Comment No. 5, General Measures of Implementation of the Convention on the Rights of the Child, 2003.