Children (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament on 27th May 2020.

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Photo of Donald Cameron Donald Cameron Conservative

I refer members to my entry in the register of members’ interests: I am a member of the Faculty of Advocates. I am aware that the faculty gave evidence on the bill to the Justice Committee.

I welcome the opportunity to contribute to the debate on this important bill at stage 1. I thank members of the Justice Committee for their scrutiny of the bill so far and for their helpful report.

I have listened carefully to the comments that members have made this afternoon. As members have noted, the bill seeks to enact changes to the landmark 1995 act and the Family Law (Scotland) Act 2006, to meet new challenges and reflect recommendations from various organisations and charities on improving the process of resolving disputes about children.

As Liam Kerr said, the Scottish Conservatives are broadly supportive of the intent of the bill and, as such, will support it at stage 1, with a view to improving it at stage 2.

I run the risk of repeating what other members have said, so I will use my time to focus on two elements of this extensive bill and consider the views of the Justice Committee and the organisations that presented evidence to it.

First, I note the proposals to improve children’s participation in the court process. In particular, sections 1 to 3 seek to remove the presumption that only a child who is aged 12 or over is of sufficient maturity to form a view. The bill provides that all children should be able to give their view if they wish to do so and are capable of doing so. During the call for evidence, that change was welcomed by charities such as Who Cares? Scotland, which went on to say:

“the removal of the presumption must come alongside new resources and approaches to facilitate participation from those under 12 to engage meaningfully with the court process and should not result in young children being expected to fit into a system designed for adults.”

I note that the Justice Committee and stakeholders took the view that the wording in the bill might lead to misinterpretation and that decision makers might therefore come to a view that a child did not have capacity to give their view. I therefore welcome the Scottish Government’s commitment to address that issue by amendment at stage 2, which I hope will strengthen that provision.

Section 15 is important, as it will ensure that any decision that is taken by the court has to be explained to the child, where possible. Many courts and judges do that already, of course, but it seems important to place the approach on a statutory footing. Given that it is not currently a requirement for a court to explain decisions to children in a manner that they can understand, the provision will ensure that decisions have to be explained either by the court or by a child welfare reporter. I think that, in the financial memorandum to the bill, it is suggested that the latter method will be used in the vast majority of cases. The committee’s report highlights the view of the Children and Young People’s Commissioner Scotland that explaining decisions to children is

“An important part of the participation of a child”.

Concerns have been expressed about section 15, including by the Faculty of Advocates, and the committee recommended:

The Scottish Government should before Stage 2 set out how it will address the practical issues raised about the duty in section 15”.

I note that the Government has indicated that it will address the matter.

The second element that I want to talk about relates to the potential failure to obey a court order. In that regard, I highlight section 16, which relates to how courts should respond to a situation in which one parent breaches a court order in favour of another parent or relative. At present, parents who are found in contempt of court may be fined or imprisoned, but the bill would introduce powers to investigate why a breach of a court order took place and whether special circumstances led to the breach. That would allow courts to decide whether finding a parent in contempt of court would truly be in the child’s best interests and, instead, to consider alternative courses of action, such as adjusting the court order.

I note the conflicting views on the provision. For example, Scottish Women’s Aid states:

“We know from our services that women who ‘fail to comply’ with contact orders are often, in reality, protecting their children from abuse, and have been subject to criminal proceedings as a result.”

On the other hand, the senators of the College of Justice—the most senior judges in Scotland—argue that the provision is unnecessary. In their written submission, they state:

“The nature of contempt of court proceedings already ensures that the court must take into account the reasons for any failure to obey an order. There is a risk that its introduction would encourage parties to disobey a court order in order to draw attention to what they perceive to be its injustice, and so indirectly seek to bring about its variation or discharge.”

I acknowledge that the Justice Committee’s report recommends that,

“If section 16 of the Bill is retained, the ... Government should amend it at Stage 2 to make it clear that, as part of any investigation, the views of the child or children involved should be sought, where they wish to give their views.”

That appears to be in keeping with the general theme of the bill and, again, I welcome the fact that the Government will make proposals at stage 2.

The bill is extensive, thorough and important, and I concur that it is needed not only to change existing legislation in the area but to comply further with the UNCRC in relation to family court cases. As I have said, the Scottish Conservatives are content to support the bill at stage 1, but we will continue to scrutinise it at stage 2. Children who end up going through the pain and stress of entering the court system as a result of parental dispute should always be at the forefront of our decision making—they come first. Although I look forward to the bill progressing, I encourage anyone to make positive amendments as it goes through Parliament.