A very wide range of amendments have been raised for discussion at stage 2 of the Children (Scotland) Bill, reflecting the key issues that were not included in the Bill. Stage 2 discussion by the Justice Committee and decisions on whether these amendments can be accepted into the Bill will take place on Tuesday 23rd June. Stage 3 debate will take place at a meeting of the whole Scottish Parliament, probably after the summer recess.
The following notes outline some of the key changes which have been raised at stage 2. The complete lists are BBAmendments20200616 and BBAmendments20200618. If you have strong views on them do contact your own MSPs but try to make this contact short, positive and linked to a brief note of your own experience. You can find out which MSPs represent you here.
SHARED PARENTING
Liam McArthur MSP has proposed adding “in the absence of an agreement on the pattern of residence of a child and at the request of at least one of the child’s parents, the possibility of ordering that the child should reside on an approximately equal basis with each of the child’s parents.” which is based on the Belgian law change in 2006.
REMOVING RESIDENCE AND CONTACT ORDERS
Fulton MacGregor MSP has proposed an amendment which will remove the terms “residence” and “contact” from court orders:
“Renaming residence and contact orders
(1) The Children (Scotland) Act 1995 is modified as follows.
(2) In section 11 (court orders relating to parental responsibilities etc.)—
(a) in subsection (2)(c), the words “(any such order being known as a “residence order”)” are repealed,
(b) in subsection (2)(d), the words “(any such order being known as a “contact order”)” are repealed,
(c) in subsection (2)(e), the words “(any such order being known as a “residence order”)” are repealed,
(d) in subsection (3)(aa), for “contact” substitute “section 11”,
(e) in subsection (12), the word “residence” is repealed.>
SPEEDING UP DECISIONS ON CONTACT
Fulton MacGregor MSP has proposed the addition of a more definite statement on speedy decisions:
“…must resolve disputes about contact as soon as practicable and in any event no later than 60 days after the commencement of proceedings.”
CHILDREN’S RIGHTS TO SEE GRANDPARENTS
Not surprisingly, several amendments cover this point. Jeremy Balfour MSP has put forward
“In deciding whether or not to make an order under section 11(1), the court
must take into account the child’s right to maintain a relationship with the
child’s grandparents.”
Alex Cole-Hamilton MSP has proposed adding a different phrase: “the child’s right to contact with lineal ancestors”
Jeremy Balfour MSP has proposed further work to specify who is covered by this amendment:
“the meaning of “grandparents” for the purposes of subsection (3A) is tbe defined by the Scottish Ministers by regulations subject to the affirmative procedure.”
UNDUE INFLUENCE OF CHILDREN’S VIEWS
No amendment has been made on this point, but the Scottish Government will consider this further at Stage 3 and in the training and oversight of Child Welfare Reporters. Given that this legislation makes considerable improvements in the way children’s views will be considered, we suggest that undue influence by one of their parents, including parental alienation, should have been included in the legislation.
TRAINING AND EXPERIENCE OF CHILD WELFARE REPORTERS
Liam McArthur MSP has put forward an amendment which puts this reporting back in the hands of social workers:
“Only a social worker registered with the Scottish Social Services Council may be appointed as a child welfare reporter.”
SPECIALIST FAMILY SHERIFFS
Jeremy Balfour MSP has given a strong steer to the judiciary about creating specialist family sheriffs across Scotland:
Specialist judiciary: cases, designation and allocation
(1) The Lord President of the Court of Session may, by direction, determine that cases brought under section 11 of the Children (Scotland) Act 1995 are suited to being dealt with by judicial officers that specialise in that category of case.
(2) The Lord President may vary or revoke any direction made under subsection (1).
(3) The sheriff principal of a sheriffdom may designate one or more judicial officers of the sheriffdom as specialists in the category of cases determined under subsection
(1).
(4) The Lord President may, by direction, determine in consultation with the relevant sheriff principal, that a case determined under subsection (1) may be allocated to a judicial officer outwith the sheriffdom within which the case would otherwise be heard.
(5) In this section “judicial officer” means—
(a) a sheriff,
(b) a summary sheriff,
(c) a part-time sheriff,
(d) a part-time summary sheriff.”
MEDIATION INFORMATION MEETINGS
Margaret Mitchell MSP has proposed a trial of information meetings about mediation before court action can start:
“Mandatory mediation information meeting
(1) The Children (Scotland) Act 1995 is modified as follows.
(2) After section 11ZC (which is inserted by section (Alternative methods of dispute resolution) of this Act), insert—
“11ZD Mandatory Mediation information meeting
(1) The Scottish Ministers must, by regulations, make provision for a pilot scheme for the purpose set out in subsection (2).
(2) The purpose is to enable the court, before an order is made under section 11, to require the parties in dispute to attend a mediation information meeting on the options available to resolve the dispute, except where the dispute involves domestic abuse.
(3) For the avoidance of doubt, subsection (2) does not apply where a dispute involves domestic abuse.
(4) The regulations under subsection (1) may provide for judicial discretion to allow the parties in dispute not attend a mediation information meeting under subsection (2) where reasonable mitigating factors have been given.
(5) A draft of regulations under subsection (1) must be laid before the Parliament no later than 6 months after Royal Assent.
(6) Regulations under subsection (1) are subject to the affirmative procedure.”.
ALTERNATIVE METHODS OF DISPUTE RESOLUTION
Margaret Mitchell MSP has proposed adding very specific reference to resolving disputes away from the court and making legal aid available:
“Alternative methods of dispute resolution
(1) The Children (Scotland) Act 1995 is modified as follows.
(2) After section 11ZB (which is inserted by section 1(4) of this Act), insert—
“11ZC Alternative methods of dispute resolution
(1) The Scottish Ministers must by regulations make provision for legal aid to be available to the parties in dispute to enable the parties to participate in alternative methods of dispute resolution for the time being set out in
subsection (3).
(2) Regulations under subsection (1) must make provision to secure that—
(a) legal aid is available for the purpose of undertaking alternative methods of dispute resolution, and
(b) the applicant is enabled to secure appropriate legal advice to engage in alternative methods of dispute resolution—
(i) before, or instead of, commencing court proceedings, or
(ii) as directed by the court.
(3) A draft of regulations under subsection (1) must be laid before the Parliament no later than 6 months after Royal Assent.
(4) The alternative methods of dispute resolution under this section to which legal aid is to be available by virtue of this section are to include—
(a) mediation
(b) arbitration,
(c) collaborative law,
(d) family group conferencing.
(5) The Scottish Ministers may by regulations modify the list of alternative methods of dispute resolution for the time being set out in subsection (3).
(6) Regulations under this section are subject to the affirmative procedure.
(7) In this section—
“alternative methods of dispute resolution” means methods by which the parties involved in a family dispute may resolve that dispute without recourse to legal action through the court process,
“legal aid” has the same meaning as “civil legal aid” in the Legal Aid (Scotland) Act 1986,
“advice and assistance” has the same meaning as in the Legal Aid (Scotland) Act 1986.”