Scottish Labour supports the general principles of the Children (Scotland) Bill and welcomes the progress that it marks in the promotion and production of children’s rights as set out in the United Nations Convention on the Rights of the Child.
Scottish Labour affirms the need to place the best interests of the child at the heart of decisions that affect them, and agrees that supporting children’s participation in such decisions is essential. We welcome the protection that the new provisions will afford to vulnerable persons in section 11 parenting dispute cases, and believe that consistency in the treatment of vulnerable witnesses should be facilitated across all legal proceedings.
There are concerns about the current safety of child contact centres, as other members have said. Regulation is a necessary step, but the Scottish Government must ensure that centres have sufficient funding to meet demand and any new regulatory requirements.
Scottish Women’s Aid has written about the role that the Children (Scotland) Bill must play in protecting women, children and young people who have experienced domestic violence. These are the key points that Scottish Women’s Aid raised:
“Children who have experienced domestic abuse are at the centre of the majority of family court cases and also the most vulnerable parties in them; the government has an obligation to create a system that protects and upholds their rights.
Omitting children’s views from proceedings is disempowering and dangerous: the Bill must be amended to ensure meaningful participation, including a child-friendly system of redress and complaint.
Children have consistently stressed the importance of support and advocacy workers. The Bill must be amended to reflect the Scottish Government’s commitment to providing specialist, trauma-informed support in facilitating children’s meaningful participation.
Children who have experienced domestic abuse must be able to express their views safely, without fear of retribution. The Bill must be amended to provide further protection for children’s confidentiality.
Understanding of the dynamics of abuse and control must be reflected at every stage of civil court processes, including in the language used, the training of legal professionals, the provisions of special measures for vulnerable witnesses, and referrals to contact centres.”
Many organisations have written similar points.
Although the bill is an important step forward, there remain areas that Scottish Labour wishes to see addressed and tightened up at stage 2, including the provision that would enhance the right of a child to express a view during proceedings. It is a positive provision, but a number of additions could improve it further still. There was some concern that, as drafted, simply removing the presumption of competence for children over the age of 12 could mean that more children would be deemed to fall into the exception of not having capacity and fewer children would have their views considered. To counter that, as James Kelly said, the bill could be strengthened to include an explicit requirement that a court ensures that a child, regardless of age, has the opportunity to express their views.
Provision could also be made for a child to refuse to make their views known, so that they are not placed under pressure to make what might feel like a decision or choice. Children should be given the opportunity to indicate the manner in which they wish to express their views, rather than the way that is considered to be suitable being mandated to them.
Although the bill removes the age limit presumption with regard to the expression of a child’s views, it retains the presumption in the 1995 act that children aged 12 and over should have capacity to instruct a solicitor. That is inconsistent with the approach of the bill and the presumption in relation to legal capacity that exists in other legislation. That section of the bill should be removed, and the Scottish Government has indicated to the Justice Committee its intention to do so.
The section on the duty to investigate non-compliance with contact orders was subject to debate, namely as to whether it adds anything to existing practice. However, as the bill stands, there is no explicit provision for a child’s view to be sought, which should be rectified if the provision remains.
As I stated previously, there is broad support for the bill across all organisations in Scotland that work with children and families, and positive views have been submitted on how to improve the bill further, including the excellent report by the committee. I look forward to stage 2 of the bill.