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Children (Scotland) Act 2020

The way in which the court decides with whom a child should live or spend time with is changing with the advent of the Children (Scotland) Act 2020. The provisions of the Act which received Royal Assent on 7th October 2020 came into force earlier this year.

For the first time, grandparents and siblings are formally recognised, the Act requiring the court to look at not just a child’s relationship with his or her parents, but also with others.

The welfare of the child remains the court’s paramount consideration and an order will only be made if that would be better for the child than no order being made. In other words, the court will not intervene unless intervention will improve the child’s welfare.

The views of the children have long been considered important, although until now, the child’s age and maturity have had a bearing on whether views are sought. Only children over 12 years of age were assumed to have sufficient age and maturity. Under the new Act, the court will require in all cases to give the child an opportunity to express a view. The only exception is where a child is not capable of doing so, and, importantly, evidence of that would have to be produced.

The court must also now consider whether an explanation of its decision should be given to the child, and how that should be done. Such explanation might be given to the child either by the Sheriff herself, or by a Child Welfare Reporter at the request of the court. Child Welfare Reporters will now have to be registered and follow a new set of standards,

The new Act also imposes much stricter legal duties on local authorities, children’s hearings and sheriffs when children are in care. A child’s brothers and sisters must now be asked for their views on what should happen and Children’s Hearings and sheriffs will, always have to consider contact with siblings. Brothers, sisters and other relatives will now have the chance to take part in Children’s Hearings and to seek a review of any decision.

The new Act, represents the first major change in this area of law for 25 years. Its provisions place children firmly at the heart of all decision making; requiring the decision makers to engage directly with them; listen to them; explain decisions to them; and to recognise the importance to them of their siblings, grandparents and other family members.

For advice on any matter of law involving children, please don’t hesitate to contact us.

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