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It’s been half a decade since the last significant piece of legislation concerning the rights of the child was passed in Scotland. In those 5 years Donald Trump became president, the UK voted to leave the EU and the price of a Freddo increased by another 5p. Evidently, life and things moves fast and it goes without saying that our legal system ought to move with it. Enter, the new Children (Scotland) Bill.

Introduced to Parliament on the 2nd September, the Bill’s primary focus is, are you ready for it? The child! In short, the Bill aims at ensuring the best interests of the child are central in all family law cases and their voices are given due weight by the courts. One way in which it proposes to this is by removing the current legal presumption that a child aged 12 or over is consider mature enough to give their view, and instead seeks to give all children who are capable of forming a view, regardless of age, the opportunity to do so. The intention behind the provision is to ensure all parties better understand the position of the child, as well as empower younger children in the decision-making process. 

Another key aspect to the Bill is the introduction of new special measures in assisting vulnerable witnesses and victims of domestic abuse. Building upon current legislation, Section 4 and 5 of the Bill states that a rebuttable presumption be applied prohibiting a party from self-representation where the court is considering a s11 order under the 1995 act. Further, it is proposed there be a mandatory ban in all Children Hearing court proceedings. The idea behind the provision is to prevent abusers using the courts and justice system to further perpetrate abuse through things such as cross examination. This will allow victims to give their best evidence without fear or intimidation. The new measures have been hailed by women’s aid and children’s charities as vital piece of legislation in the protection of victims of domestic abuse, and goes as far to suggest that the ban should apply to all children involved in a case, whether they are the victim of domestic violence or not.

Above are the two most notable provisions intent on making the biggest changes to children’s rights, but the bill itself contains 25 sections and covers a myriad of areas including: regulating child welfare reporters, curators ad litem, and contact centres, recognising parental rights and responsibilities obtained outside the UK, extending the enforcement powers of the sheriff courts and whether a delay in proceedings will negatively impact the child.

But what is the basis for the Bill I hear you ask. Well, the information contained in the Bill was informed by child friendly questionnaires issued by the Scottish Government as well as a consultation held on the Review of Part 1 of the 1995 Act. The questionnaire and consultation ran from 15 May to 28 September 2018. They received 250 responses with regards to the Consultation and approximately 300 responses to the child friendly questionnaire.

The Bill has been well received by Charities and Parliament alike, and there is hope the Bill will pass through Holyrood with relative ease. However, legislation is only one way in which the family justice system can be improved and if we are to ever reform the system in any meaningful way we must continue encourage independent projects and government programs, such as the Family Justice Modernisation Strategy, to improve our family justice system inside and out.  As it stands however, the Bill is a pivotal step toward administering child friendly justice. 

Blog by Natasha Goldman, Trainee Solicitor

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