New Children (Scotland) Act amendment restates that both parents are entitled to a view on decisions about their child.

An important amendment to the Children (Scotland) Act 1995 comes into force later this month, restating the importance of both parents being involved in major decisions about their child. It is also more explicit on the obligation of parents to give the child the opportunity to give their views.

The obligation to “have regard to the views of any other person who has parental responsibilities or parental rights in relation to the child” has been in the legislation since 1995.

However, the steady flow of calls to our helpline reveals that the obligation is ignored by some parents, who, for example, enrol a child in a new school without the knowledge or agreement of the other parent, or even offered the chance to express a view. It also arises when one parent decides to relocate to a new address that renders any agreed or court-ordered co-parenting schedule impossible.

Often the change is only discovered after it has happened. Our impression from our case work with mothers, fathers and grandparents every year is that a sheriff will be presented with an effective fait accompli by the time it can be raised in court.

There is no definition of the kind of decision that would be covered by the legislation but there can’t be many more important than where a child lives or goes to school.

The wording of the obligation to “have regard to the views of any other person who has parental responsibilities or parental rights in relation to the child” has been in the legislation since 1995 and is retained within the changes to Section 6 of the Act. The amendment inserts subsections (1A) to (1D) that mainly refer to children having the right to express views on any major decision being exercised by a parent that will affect them. It removes the previous reference to 12 years of age as the general presumption of a child being sufficiently mature.

Section 6 of the 1995 Act now reads:

6 Views of children. 

(1A) The person must

(a) give the child an opportunity to express the child’s views in

(i) the manner that the child prefers, or

(ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child’s preference, and

(b) have regard to any views expressed by the child, taking into account the child’s age and maturity.

(1B) But the person is not required to comply with subsection (1A) if the person is satisfied that

(a) the child is not capable of forming a view, or

(b) the location of the child is not known.

(1C) In considering whether the child is capable of forming a view, the person is to start with the presumption that the child is.

(1D) The person must, so far as is practicable, have regard to the views of any other person who has parental responsibilities or parental rights in relation to the child.”.

These changes reaffirm that children have a right to be heard and that both parents should be involved in the important decisions that shape their lives. Shared Parenting Scotland hopes this clear restatement of the law will gain more traction among solicitors and sheriffs and lead to stronger respect of children’s voices and greater recognition of the role of both parents in decisions about their upbringing.