Planned legislation designed to ensure that the voice of the child is heard in court could be "retrogressive", the Faculty of Advocates believes.
Responding to a call by the Scottish Parliament’s Justice Committee for comments on the Children (Scotland) Bill, which amends the parental responsibilities and rights provisions in the Children (Scotland) Act 1995, Faculty says it supports the views of the child being heard, and all appropriate methods being explored to enable that to happen. However it notes that under the bill it would be mandatory for the judge to give a child the chance to express a view, unless satisfied that the child was not capable of forming a view.
"The introduction of an express test of 'capacity' is liable to result in additional litigation and promote the use of expert evidence. It is more restrictive than the current position, where the only restriction on affording the child an opportunity to express a view is 'practicability'", Faculty maintains.
"The proposed change is potentially retrogressive. The court should be given the maximum flexibility to decide the most suitable way of obtaining a child’s views. The legislation should give a child of whatever age the opportunity to express a view. The test should remain that of practicability."
It adds that the present legislation, where the best interests of the child are considered as a matter of principle, "is preferable to and more flexible than consideration of a list of factors which must be considered in making a decision in the best interests of the child, and particularly preferable to a partial and selective list".
Faculty also has reservations about removing an appeal to the Court of Session without permission of the Sheriff Appeal Court, regarding cases relating to children's hearings.
"Our view is that the sheriff court is often dealing with serious allegations equivalent to those tried in the High Court in criminal matters, which merit the attention of the Inner House", it states.
"While the Sheriff Appeal Court can remit to the Inner House, time is often of the essence and extra steps in the process should be avoided. Our view is that the direct right of appeal to the Court of Session should be maintained."
On other points, Faculty believes:
- that registers of child welfare reporters and curators ad litem, and training for reporters, are best maintained at local rather than national level;
- that whether to explain a decision to a child should be left to the discretion of the judge and it is not appropriate to make this mandatory;
- that cases involving allegations of abuse raise difficult issues, where it is important that the sheriff or judge is able to exercise discretion as to how best to manage a case;
- and that the proposed provisions regarding regulated contact centres create issues in relation to access to services and indeed access to justice in remote areas where there may be no regulated contact centre, giving rise to a risk of closing down opportunities for contact.