Meeting of the Parliament (Hybrid) 25 August 2020
The amendments in my name seek to strengthen the bill to ensure that the child’s views are heard in family court cases and children’s hearings. That is one of the key aims of the bill.
The amendments do two things. First, they reinstate the requirement that children must be given an opportunity to express their views in relevant proceedings. That requirement was included in the bill on introduction but was partially replaced at stage 2 with a requirement for a decision maker only to seek to make reasonable arrangements for a child to express his or her views.
Secondly, the amendments ensure that, when a child’s views are sought, the child’s preferred method of giving their views is to be used unless it is not reasonable to do so or the child has not expressed a preferred method of giving their views. The amendments cover family court cases and other proceedings under the Children (Scotland) Act 1995, children’s hearings, exclusion order proceedings and permanence and adoption cases.
I return to a point about exceptions that I made at stage 2. The Scottish Government believes that the majority of children are capable of forming a view on issues that affect them, but we recognise that that will not be true in every circumstance. For that reason, the bill provides that a decision maker is not required to seek or have regard to the view of a child if they are satisfied that the child is not capable of forming a view. However, the Government does not expect that exception to be used frequently.
There is also an exception to the requirement to take the child’s views in the child’s preferred manner, because it may not be feasible in some circumstances to use the child’s preferred method of giving their views. I would expect that exception also to be used infrequently.
I have recently published a paper on the ways in which a child can give their views, and I have committed, in the family justice modernisation strategy, to produce guidance for parties on going to court. That guidance will include information on the range of ways in which a child can give their views. We will need to reflect on how the strategy and the guidance are working in practice, so I welcome amendment 48, in the name of Liam McArthur, which requires a review of the impact of the act after five years. I ask members to agree to that amendment.
I am, however, unable to support amendment 35, in the name of Alex Cole-Hamilton. Amendment 35 would require a person who does not have parental rights and responsibilities but who is making a decision to safeguard the health, development or welfare of a child to seek and take account of the child’s views on maintaining personal relationships with family members. Even if the decision was unrelated to contact and residence—if it was about something like consent to a medical procedure—I cannot imagine that that is what the member intended. The bill makes provision requiring the views of the child to be considered in a variety of contexts, so it is entirely unclear why the member is seeking to make a change in that specific context only. Doing so would create inconsistency with the rest of the bill and inconsistency for children in how their views were obtained.
I reassure the member that the bill allows the views of children to be taken into account in a wide range of circumstances and that, where relevant to the decision or to the case in question, the child’s views of their wider family relationships will be sought and taken into account as part of the process. In addition, the bill requires the court, when making an order under section 11(1) of the 1995 act, to have regard to the effect on the child’s important non-parental relationships. Therefore, I ask the member not to press amendment 35.
I move amendment 8.
15:30