Children (Scotland) Act: Unfinished Business

Anniversaries are usually a good opportunity to look back at what has been achieved and what can still be done. The Children (Scotland) Act is still the structure on which decisions about parenting after separation or divorce are built and has passed its 30^th birthday.

While Shared Parenting Scotland advocates strongly for alternatives to the adversarial approach to making decisions that will affect children for the rest of their life, it is worth looking back to mark the importance of the new principles set out in the Act and how far their ambition looks from the 2026 perspective.

The Act itself was several years in the gestation. It followed the comprehensive Scottish Law Commission report of January 1992 which itself was the culmination of an extensive consultation. Much of the thinking of the Act reflects experience and thinking of the late 1980s.

It is to the credit of its authors that it settled on the principles that have endured, as principles should, that the child’s welfare is to be the paramount consideration in all decisions, and that a court has a duty to consider the views of children when making any order in respect of their welfare.

Their attention to language is important in supporting the notion that a child might benefit from continued involvement of both parents after divorce or separation. ‘Custody’ and ‘access’ were displaced by ‘residence’ and ‘contact’ though we regularly encounter references to ‘custody’ three decades on.

‘Parental Rights and Responsibilities’ was intended to be a more inclusive concept and, along with the ‘No order principle’, created space for parents to cooperate as mothers and fathers of the child after divorce or separation.

Recommending the abolition of ‘custody’ and ‘access’ the report explained, “There is always a risk that orders allocating custody and access (or even deciding upon residence and contact) will have the effect of polarising the parents’ roles and perhaps alienating the child from one or other of them.”  I include the quote for those who believe the word alienation is a recent unwelcome arrival in Scotland.

The Law Commission Report is beautifully written. It feels like family law equivalent of the King James bible.  It tempers optimism with realism and back again:

“There will still be disputes about where children are to live, about how much contact with them a parent should have and when, and about aspects of their upbringing. There will still be reasonable people with widely differing views about what is best for their children. There will still be unreasonable or bitter people. … Nonetheless, while we do not overestimate the likely impact of our proposals, we have been impressed by the support from experienced lawyers and conciliators for a change in the basic approach and we hope that the changes recommended here may contribute in some small measure to a change in perceptions and to an increasing recognition that both parents remain parents, and have a role to play as such, even if their own relationship has unfortunately broken down and their child can no longer live with both of them at the same time.”

That is also the ambivalent impression we get at Shared Parenting Scotland from our helpline calls and group meetings – on good days, encouraging examples of insight and sensitivity about parenting across two homes. Other days, not so many.

The Report also notes Scotland’s changing demographic with the increase in the number of children born to parents who cohabit rather than marry. It draws on the newly drafted United Nations Convention on the Rights of the Child:

“It seems to us that the balance has now swung in favour of the view that parents are parents, whether married to each other or not. If in any particular case it is in the best interests of a child that a parent should be deprived of some or all of his or her parental responsibilities and rights, that can be achieved by means of a court order.  Support for conferring parental responsibilities and rights on all fathers, regardless of their marital position, came from a wide variety of sources including judges, reporters to children’s panels, the British Agencies for Adoption and Fostering, the Family Charter Campaign, Family Conciliation Scotland, the Scottish Child and Family Alliance, Care in Scotland and several women’s groups. Article 9(3) of the United Nations Convention on the Rights of the Child obliges States Parties to respect the child’s right to contact with both parents. Article 18(1) obliges States Parties to use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.”

From our experience and casework, I would add a third principle that wasn’t current back then and that is ‘transparency’. Put simply, we don’t know enough to know how well our system is performing. For a political culture that insists decisions should be evidence-based, too much of the narrative relies on anecdote rather than data. We know a little about the input of our family courts – how many cases every year and what the principal issues are that the court is being asked to consider, but virtually nothing about the output. What decisions were made and whether they stood the test of time in the context of the ambition of the 1995 Act of enabling both parents to play a role in their child’s life.

First, children’s views. The ‘voice of the child’ is important but in recent years has become more of a slogan than an imperative to use all that we know to allow the child to speak freely  about what, for most, will be the worst thing that has happened in their life, the separation of the parents. Adverse Childhood Experiences hadn’t been given their name back then but divorce or separation is now recognised as one of them. Being pressed for a view on a decision that will affect the rest of their life into adulthood should not become another.

The Scottish Law Report overlapped with considerations arising from the Lord Clyde Orkney Inquiry. One of the radical reforms from Orkney was the overhaul of the system of interviewing children, albeit as prospective witness to a crime. The Joint Investigative Interview was created to avoid tainting evidence and can now be carried out only by police officers and social workers specifically trained in interviewing children.

It is puzzling that the connection wasn’t made long ago with the interviewing of children by Child Welfare Reporters. Through our casework we know of some reports that are models of sensitivity and insight but others that show neither. We still do not know how child welfare reporters are recruited or how their skills are assessed before being added to a sheriffdom’s list. The Children (Scotland) Act 2020 legislated for an overhaul of the whole system to create supervision, recruitment, training and performance appraisal at national level. Thousands of further Child Welfare Reports have been written and recommendations made since the Scottish Parliament legislated for change.

At the recent conference of the International Council for Shared Parenting in Lisbon, I was struck by the effort and imagination that is being invested in gathering the views of children in ways that do not do them damage or place them in the invidious position of effectively choosing between their parents under pressure in the context of an adversarial court process.

It is not to murmur the judges to suggest that there should be an element of transparency too in their training. While there is a long-standing ambition that family cases such as contact and residence should be handled by specialist family judges, it isn’t a reality across Scotland. In other European jurisdictions family judges are required to undertake a certain amount of CPD every year on everything from child psychology and development to changes in the tax and benefit system. Do our sheriffs and judges have a similar requirement? We don’t know. We do know that they should.

At Lisbon, a Polish researcher sent a questionnaire to 40 family court judges. One question asked them to define “the best interests of the child” and received widely differing answers. It sounds like a question in search of a Scottish academic to pose here.

While waiting for researchers to engage, it would help everyone – professionals as well as parents and grandparents – to get their bearings and manage their expectations if more sheriffs published their (anonymised) judgments. The intelligence vacuum is filled with anecdote and anxiety and the mercies of social media.

The ecology of the public relationship with justice and its institutions has changed beyond recognition in the last 30 years or more. There is generally more dialogue, more explanation and more accountability without threatening judicial independence or the integrity of the supporting apparatus. I can’t help but feel we would all benefit from more transparency and that the authors of the 1992 Scottish Law Report would have been in favour of adding knowledge wherever it benefits our children.