Concerns over a number of provisions in the Children (Scotland) Bill have been expressed by the Court of Session judges in their written evidence to the Scottish Parliament's Justice Committee.
The committee is currently giving stage 1 scrutiny to the bill, which would make various amendments to the Children (Scotland) Act 1995 in relation to disputes over the care of children.
“Our primary concerns with the Bill are in terms of practicalities and workability”, the judges say. The first issue they raise is over the proposed register of child welfare reporters. While welcoming the establishment of a register, and the prospect of formally trained and qualified reporters, the judges argue (as does the Sheriffs' Association in its submission) that responsibility for maintaining the register of child welfare reporters should rest with the courts and not with ministers. The practical difficulties with the bill's contrary proposal “include the steps which the court would have to take to a appoint a child welfare reporter from the list, and how the court will ensure that the list is up to date”.
Similar issues arise in the context of curators ad litem.
As to the proposed duty on the court to ensure that a decision on care is explained to the child concerned in a way the child can understand, the judges maintain that there “should be no expectation on the judiciary to engage with children in this manner”. Given the volume of orders made on a daily basis, “It would simply be unworkable for the judiciary to perform this function.”
“The primary responsibility to explain the decision to the child should remain with the parents”, the submission continues. “If that was inappropriate in a given case, then a child support worker or child welfare reporter could step in. We are extremely concerned by the proposal to place this obligation on the court.”
The Sheriffs' Association is “strongly of the view that such a duty would be unrealistic, unduly onerous and may lead to communication fatigue and stress to the child concerned”. However Scottish Women's Aid argues that the explanation of decisions to children “is a welcome inclusion in the bill but must be strengthened in order to ensure the best interests of the child are met”.
The judges also “disapprove” of the proposed extension to the sheriff of enforcement powers under the Family Law Act 1986, which concerns cross-border cases. Whereas the Court of Session has an all-Scotland jurisdiction, and is well used to dealing with complex cases, “By extending this power to the sheriff court, whose jurisdiction is restricted to the particular sheriffdom, and which has less exposure to these types of cases, our concern is that the delay in such cases may increase.”
The judges further argue that it is unnecessary to add a list of additional factors which the court must take into account when considering the child’s welfare and whether or not to make a care order under s 11 of the 1995 Act, since the courts already take “a holistic view... having regard to all relevant factors”; unnecessary also to require a court, in contempt of court proceedings for alleged failure to obey a care order, to first seek to establish the reasons why the person has failed to obey it, since the court must already take such reasons into account, and there is a risk that the new provision “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”; and unnecessary to legislate against delay in proceedings, since the courts are already “well aware of the need to proceed expeditiously in child welfare cases”.
On the contempt provision the Sheriffs' Association argues: “The need for further investigation suggested may in fact, undermine sheriffs in taking a robust approach to the enforcement of contact orders.”
Scottish Women's Aid on the other hand submits: “We believe that investigation into non-compliance could help to highlight unsafe contact arrangements and protect victims of domestic abuse if the investigation is carried out by professionals who understand the dynamics of domestic abuse, coercive control, and the effects of trauma.
“Investigations into non-compliance with contact orders should effectively review whether a contact order should have been made in the first place.”