Comments on the Children (Scotland) Bill

Shared Parenting Scotland has submitted our  response to the Scottish Parliament Justice Committee in connection with their consideration of the Children (Scotland) Bill.  Subsequent to our evidence we also submitted further information to Justice Committee..  We have also started to draft possible Amendments to Children (Scotland) Bill. Further information to Justice Committee.

While agreeing with most of the measures in the Bill, we have proposed a range of other matters to be included, and feel that the Bill and the accompanying Family Justice Modernisation Strategy are “a missed opportunity to do a lot more to guide sheriffs and judges in the difficult task of deciding what is in the best interests of a child when the parents can’t agree.”

Our submission notes that the current legislation includes a partial check-list of factors that the court should take into account when making these decisions.  We suggest that the Bill should be amended to include a presumption of shared care when deciding where children should live, on the grounds that equal care is usually in the best interests of children.  Courts could take this as a starting point, but would be free to order other arrangements if necessary.

We also argue for explicit mention of the need for to see grandparents, and we suggest that the naming of court orders should remove the terms “contact” and “residence” as they risk leading the parent who receives a residence order from wrongly assuming that gives them overall control of all arrangements for their children.

The Bill introduces welcome changes for taking the views of children, but we suggest a note of caution should also be included, so that the court allows for the risk of undue influence and parental alienation when considering the views of children who are rejecting a mother or father with whom they previously had a close relationship.

We also suggest that the range of methods for children giving views should be extended, and that any sheriff who talks to children should receive training in this process, as happens in German courts.

We propose that court orders regarding children seeing a parent should be enforced in different ways, and that the Bill should include a far stronger statement on the importance of courts reaching quick decisions to resolve disputes about contact.

Our call for an extended check-list including these elements is also mentioned in a newly published piece of research from Dr Lesley-Anne Barnes Macfarlane of Edinburgh Napier University.  Her report “Balancing the Rights of Parents and Children”, mentions the list included in the UN Convention of the Rights of the Child General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1). 

At point 60 it notes: “Preventing family separation and preserving family unity are important components of the child protection system, and are based on the right provided for in article 9, paragraph 1, which requires “that a child shall not be separated from his or her parents against their will, except when […] such separation is necessary for the best interests of the child”. Furthermore, the child who is separated from one or both parents is entitled “to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests” (art. 9, para. 3). This also extends to any person holding custody rights, legal or customary primary caregivers, foster parents and persons with whom the child has a strong personal relationship.”

And at point 67 it states: “The Committee is of the view that shared parental responsibilities are generally in the child’s best interests. However, in decisions regarding parental responsibilities, the only  criterion shall be what is in the best interests of the particular child. It is contrary to those  interests if the law automatically gives parental responsibilities to either or both parents. In  assessing the child’s best interests, the judge must take into consideration the right of the  child to preserve his or her relationship with both parents, together with the other elements relevant to the case.