Review of Children (Scotland) Act 1995 consultation: analysis

17 Other Comments

17.1.1 Respondents to both the main consultation document and the young persons’ survey were asked to detail any other comments they had.

17.1.2 Additional comments were provided by 100 respondents to the main consultation document, and 32 respondents to the young persons’ survey.  A few respondents to the main consultation also provided comments throughout their responses that did not answer the specific consultation questions.  These have also been summarised here.

17.2 Overview of Main Sentiments

17.2.1 Many comments reiterated responses made throughout the consultation.  Commonly respondents either sought to emphasise those aspects they felt were most important or should be at the heart of any changes, or they discussed personal circumstances and experiences, or aspects of the current system which they felt needed to be addressed.

17.2.2 Those areas considered to be key for any future changes focused on ensuring that the child’s best interest is paramount; that the child’s voice can be heard and listened to throughout the process (including those of younger children); that a child should not be forced to see anyone they do not wish to; and that the child’s rights, welfare and protection/safety should be at the heart of the system.

17.2.3 Meanwhile those areas which respondents felt needed to be addressed included the ability for one party to control or manipulate the situation or to use the system to perpetuate abuse; unequal treatment of mothers and fathers (or between resident and non-resident parents); children’s views being manipulated; alienation; the inherent delays in the system; inability to adequately tackle non-compliance with contact orders; and a perceived lack of legal rights/avenues for grandparents to gain contact with their grandchildren.

17.2.4 Issues that were discussed by more than one respondent are outlined across the following sections. 

17.3 The Child’s Voice

17.3.1 Most of the young people who provided additional comments to the young persons’ survey focused on the need to ensure that the child has a voice throughout any contact dispute or name change process, that their views and wishes are listened to, and that ultimately they should have the final say.  It was stressed by several young people that children should never be forced to see somebody they don’t want to:

“We are human beings not pieces of luggage with no feelings. We don't want to be forced to live in lots of houses with lots of people we want a home and a childhood. The courts need to think of us children first and ask us what we want to do as it is our lives.”  (Young Person, Age 8-12)

17.3.2 While some stressed that, in their own situation they either wanted to see a non-resident parent or did not want contact, they highlighted that very often the child has no say in the outcome.  Often they felt their views were not considered by their parents or the courts:

“I was never allowed to give my opinion. I was never given a choice of what was happening, and I was put in very difficult situations either that the courts didn't know about, or as a result of what the courts had agreed on. The child deserves a say, because it will affect them massively if they don't. In my experience, parents often think about themselves and how to limit their communications with their ex-partner, rather than working together to help the child have the best life possible.”  (Young Person, Age 17-18)

17.3.3 One organisation suggested that it may be helpful for courts to record how the child’s views were heard, the impact this had on the case, and to record any reasons why the child’s views were not considered.  It was felt that this would help provide formal recognition of the value of the child’s voice and could provide crucial information should enforcement of a contact order be required.  Analysis of such information could also help identify any key issues, such as gaps in availability of child advocacy workers.

17.3.4 One individual noted anomalies within the consultation document with regards to obtaining the child’s view in relation to contact and residence.  It was noted that the consultation focused upon those cases that were dealt with by legal professionals, however, there was no provision for ensuring that the child’s view was taken into account by parents who reach agreement without the need for legal intervention.  They felt that greater awareness raising among the public regarding this statutory obligation was required, and further attention was needed around non-compliance in such situations.

17.4 Need for a Modern Perspective

17.4.1 A few individuals and several organisations suggested that the consultation and proposed changes to the 1995 Act provided an opportunity for family law to modernise its views on family life, to move away from traditional stereotypes of family circumstances, and to accommodate and respect transgender, non-binary, and same-sex parents:

“Increasingly the nature of family ties is changing and those ties are not always or exclusively biological. Any change to family law needs to acknowledge and reflect this protecting the rights and responsibilities of both biological and non-biological parents, and ensuring that children's best interests are upheld.”  (Family Support Organisation)

“The core tenets of the Act assume ‘traditional’ models of parenthood and who should or should not be involved in a child’s life. There are so many variations of ‘family’ now that the concept of two parents, these being a male and a female and this being the paradigm that runs through legislation is out of date.  Surrogacy, same sex partners, single parents etc. are not really represented in the act or consulted on in the suggested changes.”  (Local Authority)

17.4.2 In relation to respecting the privacy and gender identity of transgender and non-binary parents, it was also suggested that the terminology used on birth certificates needed to be updated/be more gender neutral.

17.4.3 Similar to the comments made throughout the consultation, many individuals again stressed that there was a greater need for equality between parents, both in terms of their rights and ability to be a parent, and in how they are treated in court and by professional services: 

“It does not only become a question of why a mother can put herself on the birth certificate and a dad cannot, why she has automatic PRRs and a dad does not, or why dad has to fight for every day and holiday to spend with his kids. There are deeper questions: why do dads often have to prove that they are capable of being a dad through contact centres, when step dads can be introduced to children at any time based on mum's better judgement, why is it that half-siblings on dad's side only see their brother or sister sparsely which affects their ability to properly bond, why is that grandparents on dad's side cannot have a sleepover with their grandchildren unless there is a specific court order in place? Etc. etc.”  (Individual)

“…it's vital that the whole legal process around children is moved away from being mother-centric. In our modern world, we must realise the equal importance of both parents and stop giving mothers more rights and acts, simply because of their gender.”  (Individual)

17.4.4 Again, some respondents (largely individuals) felt that 50/50 shared care/residence should be the presumed default (or rebuttal) position.  Many also took the opportunity (again) to suggest that the process was inherently bias towards one party or the other (typically towards the mother, although a few did suggest it was bias towards the father) and indicated that this was a key area that needed to be addressed.

17.4.5 One family support organisation also indicated they would prefer that the practice of writing ‘father unknown’ on birth certificates be replaced with ‘father unregistered’:  

“The Victorian connotations of the phrase 'father unknown' have no place in a modern world and 'unregistered' offers no stigma.”  (Family Support Organisation)

17.5 PRRs

17.5.1 One individual suggested that PRRs should automatically be removed from absent parents after a certain timescale, without the need to go to court.  It was felt this was necessary to allow the present parent to achieve certain things that would be beneficial for the child.  This sentiment was echoed by one respondent to the young persons’ survey, who had personal experience of an absent father having PRRs and making life more challenging for them:

“I hated that my dad had rights even though I haven't seen him for years and he had refused to sign the papers for us to get passports and change our names…”  (Young Person, Age 13-16)

17.5.2 Similarly, one legal professional suggested that PRRs can create situations where court orders have to be sought, for example to take a child on holiday abroad, where someone with PRRs is withholding consent.  They felt this created largely unnecessary litigation and was an area that needed to be addressed.

17.5.3 One children’s organisation and one young person also felt that PRRs can create specific difficulties for children in care, for example, if the current carer is not the person with PRRs there can be difficulties in getting approval for school trips, etc.  It was felt that, for children in care, PRRs should automatically move with the child, so that the person providing the care at any given time would be granted PRRs. 

17.6 Alternative Approaches

Dedicated Sheriffs and an Inquisitorial Approach

17.6.1 Several respondents suggested that contact cases should be dealt with by the same Sheriff throughout (wherever possible) and/or that hearings should take a more inquisitorial (and less adversarial) approach.

17.6.2 Another respondent also discussed a lack of consistency in the Sheriffs involved in hearing cases. They suggested that continuity provides more efficient and improved results as the Sheriff is familiar with the case:

“It would not be considered good practice in any business to change the decision maker every time a decision is made.”  (Individual)

17.6.3 One family support organisation suggested the introduction of a new, non-court based system for contact disputes.  This would consist of parenting co-ordinators who would take a more problem solving (rather than adversarial) approach to the dispute:

“By developing this new category of professional to operate using existing people working alongside and under the direction of the family courts, it should be possible to increase the chance of appropriate help becoming available to separating parents and their children far quicker than in the current system…  Parenting Co-ordinators would recognise the parents and their children as individuals who should be supported rather than contestants in a damaging game.”  (Family Support Organisation)

Other Suggestions for Alternative Approaches

17.6.4 One individual suggested that, in contact dispute cases, Sheriffs should spend a week with each parent while they are in charge of the child before making any decisions.

17.6.5 Another individual suggested that one solicitor should deal with the case and represent the entire family, rather than having solicitors on opposing sides.  They also suggested that cases should be publicly funded to ensure parity on both sides:

“We should have one solicitor dealing with the family and not a solicitor representative for each parent costing thousands and the government should cover all costs to make sure this is fair and unbiased no parent should be allowed to get themselves into debt trying everything they can to get access to their own children.”  (Individual)

17.6.6 One children’s organisation suggested that a pilot scheme, called ‘Contactfamily’ be considered for facilitating contact arrangements in cases where there has been domestic abuse.  They outlined that a third party provider passes on messages about contact arrangements, meaning no direct contact is required between a perpetrator and victim of abuse.

17.7 Comments Related to the Consultation Itself

17.7.1 A few young people expressed their appreciation at being given the opportunity to have their say and contribute to the consultation via the young persons’ survey.  One young person, however, felt that that younger children were unlikely to have been able to understand the questionnaire. 

17.7.2 One individual and several organisations suggested that some topics included within the consultation would merit further consideration, research, development, and discussion/consultation.  It was felt that some of the proposals were not very detailed and therefore more thought would be required to assess the impact on children’s rights and any potential unintended consequences (with a few organisations suggesting that a review of the system by the Scottish Law Commission may be appropriate).  A few also felt that the scope of the consultation was very ambitious, and suggested that some of the sections would have warranted a consultation in their own right.  Similarly, a few considered that the consultation proposed piecemeal changes to the legislation, and that the scope was wider than just the 1995 Act and, as such, there was concern that other key stakeholders (including those representing health and education) may not have responded.  Several respondents were, therefore, keen that further consultation took place before changes were made and/or before moving to a Bill.    

17.7.3 A few organisations also suggested that the consultation often seemed to prioritise the rights of various adults over the rights of/best interests of the child.  Others suggested that, at times the consultation questions focused too much on systems and processes without taking full account of the impact that these changes will have on children and families.  These were views that had also been highlighted throughout the consultation.

17.7.4 One individual also noted that several of the consultation questions did not appear to relate to issues directly dealt with by the 1995 Act.  Again, this was a sentiment also expressed by a few respondents throughout the consultation.

17.7.5 A few individuals also felt that the consultation missed the opportunity to place the issues in a wider context and provide overarching solutions, and to debate the necessary and supporting philosophical questions:

“If this consultation is really about shaping the future for children and families in Scotland then we need to be having the big debates - who is a child, who is a parent, who decides on the identity of the child to be registered and how do we manage the sometimes competing interests and rights of the children and the adults before we try to fix some of the relatively minor issues of implementation.”  (Individual)

17.7.6 Similar to one of the comments in relation to the EQIA, a few respondents (both organisations and individuals) commented on what was perceived to be an unfair bias by disproportionately advancing the views and issues of one group:

“I am also concerned to find throughout this consultation that a leading role and undue influence seems to have been afforded to a single (gendered) adult special interest group (Women's Aid). That organisation and the important issue with which it partially deals appears to disproportionately dominate this consultation, when the act itself properly claims the paramount consideration to be the best interests of children... It is simply not useful or appropriate to consider every aspect of (family) life in Scotland first and mainly through the lens of violence against women.”  (Individual)

17.7.7 A few organisations also noted disappointment that the consultation document did not link the proposed changes to the 1995 Act to GIRFEC:

“Whilst the context of the consultation reflects this welcome focus on the UNCRC, it is disappointing that there is limited alignment with significant related policy areas, most critically Scotland’s national approach to improving outcomes and supporting children’s wellbeing Getting It Right For Every Child (GIRFEC), which is not mentioned at all in the consultation document.”  (Children’s Organisation)

17.8 Other Comments

ADR Options

17.8.1 One individual noted that, while parenting classes are suggested as a sanction for breaching a contact order, there was no mention of these at other points in the consultation.  It was felt these had much to offer if used earlier in the process, and perhaps consideration was needed of whether all parents who are in dispute over contact or residence should be required to attend a short course of parenting classes.

17.8.2 One family support organisation also expressed disappointment that this topic had only been allocated one question within the consultation.    

Issues for Prisoners

17.8.3 In several areas of the consultation, one family support organisation stressed the importance and/or difficulties of issues for prisoners.  In particular, it was felt that, for some of the proposals, additional support would be required for prisoners to exercise their rights, (e.g. to take part in joint registrations of birth, to engage with and exercise their PRRs, and to be involved with their children).

Implications for Other Agencies

17.8.4 Throughout the consultation, a few public sector bodies (particularly SCTS and SLAB) highlighted where proposals may have an impact (both cost and/or resource based) on their services.  The extent of such impacts were however, difficult to determine at this stage, and would require greater information regarding how the proposals would be implemented and who would take responsibility for specific elements.

No Change

17.8.5 A few respondents suggested that the 1995 Act was working well and that change for change sake should not to be encouraged.  One also felt that the consultation questions suggested that any future changes could make the Act more complex and confusing.  

Other Issues Directly Related to the Consultation

17.8.6 Several organisations stressed the need for any changes made to family law, or in how children are able to engage with the civil court process, to be reflected in similar reforms in the Children’s Hearing system.  Indeed, a few highlighted that any changes made to the 1995 Act had implications for both the Adoption and Children (Scotland) Act 2007 and the Children’s Hearings (Scotland) Act 2011.  

17.8.7 Similar to comments made throughout the consultation, a few respondents called for greater training for all professionals who work with families and children.  Specific areas highlighted for training included domestic abuse, coercive control, and to develop trauma informed processes.

17.8.8 A few individuals suggested that more support was required for vulnerable parents, including those with mental health issues, when engaged in child contact disputes.

Other Comments Less Directly Related to the Consultation

17.8.9 Other comments, with less direct relevance to the consultation and child based cases, were also made.

17.8.10 Several individuals suggested that the current calculations used by the Child Maintenance system created a risk that contact and care arrangements would be manipulated for financial gain - as payments are based on the proportion of time a child spends with each parent and does not take into account the resident parent’s income.  This was considered as an area which required review/reform:

“l have fought for 50% care but sole reason not agreed is that my ex would lose my CMS [Child Maintenance System] payment.”  (Individual) 

17.8.11 A few respondents (both individuals and organisations) highlighted perceived issues with the Legal Aid system, in particular where funding is issued to one party but not the other.  This was considered to provide the legally aided party with an advantage and create a barrier to decisions being made in the best interests of the child:

“Cost is a barrier to ensuring that a decision is made in the best interests of the children. Where one party can access legal aid or can afford to pay privately and the other cannot access legal aid but has limited resources, the latter will often have no option but to represent themselves or give up and accept what the other party wants.”  (Domestic Abuse Support Service)

17.8.12 Finally, several respondents also indicated they would welcome/prefer an interview process to provide their views, and/or that they would be willing to speak to the Scottish Government directly regarding the content of the consultation.  A few also sought help or advice regarding their specific issues/difficulties in their case.