Amending the Children (Scotland) Bill

Publication by the Justice Committee of the Stage 1 Report  on the Children (Scotland) Bill marks the end of initial consideration of general principles of the legislation.  The Scottish Government plans to respond to this report by the end of May.  The stage 1 report and this response will be considered in a Stage1 debate in the Scottish Parliament in June.  It is now very likely that Stages 2 and 3 of the bill will extend into the next Parliamentary session after the summer recess.

At Stage 2 the Justice Committee will give line-by-line consideration to the Bill.  The Government may have brought forward changes and these will be considered alongside amendments proposed by any MSP.  Shared Parenting Scotland has already had discussions with various MSPs about possible amendments, and we encourage parents to contact their own MSPs (see here) and ask them whether they will support amendments that you feel strongly about.

As noted in our initial comments on the Stage 1 Report, we suggest that the Bill could be improved by various amendments:

TERMINOLOGY – The proposed legislation still refers to “contact” and “residence” orders.  This terminology is inaccurate and outdated and leads other professions such as education, health services and social work to treat parents differently, usually treating fathers as a complication rather than a parent.  Many other countries have seen this problem and now use terms that don’t divide parents into carers and visitors and which emphasise that both parents should remain fully involved unless it is shown that this isn’t in the children’s interests.  We suggest that the orders relating to where children will live are called “general issue orders” given that there are already “specific issue orders” relating to more specific issues such as school choices, holidays etc.

CHECK LIST – the current Children (Scotland) Act includes a checklist of the factors a sheriff or judge must take into account when reaching a decision on the arrangements that will be in the best interests of a child.  We feel strongly that this list is incomplete.  It is heavily weighted towards consideration of allegations of domestic abuse between the parents. Domestic abuse is of course a serious matter but half of cases reaching court don’t include allegations of domestic abuse and a proportion of allegations are discovered to be unfounded.    We don’t suggest it should be deleted but analysis of our casework shows several other factors need to be added to the list to help the sheriff or judge get to the heart of the issues that affect a child not only in the immediate term but into his or her adult life.

We believe the checklist should be extended to include: assessing the positive benefits to children of equally shared parenting; the need to take account of parental alienation and other forms of undue influence exerted on children when they are expressing their views; the importance of children’s relationships with grandparents; and a strengthening of the current statement on the importance of avoiding delay in court particularly in decisions about children who have been prevented from seeing one of their parents but the resolution of any issues is stalled by the court process itself

PARENTAL RIGHTS – the current legislation seems to breach both the European Convention of Human Rights and the United Nations Convention of the Rights of the Child in the way it considers the parental rights and responsibilities of unmarried fathers.  Amendment to remedy this shortcoming is long overdue and other countries have succeeded in framing laws that give rights to both unmarried mothers and fathers but take precautions so that children conceived through rape or incest are protected.

ENFORCING COURT ORDERS – we suggest that the Bill is amended to extend the scope of the court to appoint parenting coordinators and child rights officers to support and help parents and children to follow court orders.

Contact John Forsyth for more details of our proposed amendments.

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