Children (Scotland) Act 2020 - section 23(1) and section 24(1): fourth report on the Scottish Ministers' duties

Scheme for funding for alternative dispute resolution (section 23 of the 2020 Act)

7. The Scottish Ministers have not fulfilled their duty under section 23(1) of the 2020 Act to establish a scheme for funding for alternative dispute resolution (ADR). However, the Scottish Government has carried out work to progress the setup of such a scheme during the reporting period.

8. As noted at paragraph 8 of the second report (covering 1 April 2021 to 1 October 2021), the Scottish Government is aware of the Family Mediation Voucher Scheme that was established by the UK Government in England & Wales as a response to the Covid-19 pandemic.

9. Scottish Government officials have monitored the implementation of the scheme to see if there are any lessons learned that can apply to Scotland, and have met with the Ministry of Justice during the reporting period to discuss the scheme further (which has been extended beyond its original intended timescale). This knowledge will be taken into account when designing the Scottish scheme, although the duty in section 23 requires assistance to be made available for ADR generally, rather than mediation specifically.

10. Section 23(7) of the 2020 Act requires the Scottish Ministers, if they have not fulfilled their duty under subsection (1), to explain why not and to state when they expect to fulfil it.

11. On why the duty has not been fulfilled, there remains a number of detailed issues that the Scottish Government still needs to consider further. These include the following points:

• The options for funding the scheme, including options in relation to affordability.
• The eligibility criteria for assistance.
• How to ensure the voice of the child is heard in ADR, taking account of information on this provided by current ADR providers.
• How the new assistance scheme will ensure that proven or alleged domestic abuse victims are not forced to go to any ADR that is covered.
• How the new assistance scheme will fit with the legal aid system.
• If any regulations under section 23(9) of the 2020 Act would be required (under section 23(11), any such regulations are subject to the affirmative procedure).
• If any changes to court rules^[1] need to be proposed. For example, Sheriff Court Ordinary Cause Rule 33.22 provides that 'In any family action in which an order in relation to parental responsibilities or parental rights is in issue, the sheriff may, at any stage of the action, where he considers it appropriate to do so, refer that issue to a mediator accredited to a specified family mediation organisation'.^[2]
• Ensuring the scheme is fully evaluated.

12. In addition, the Scottish Government will need to discuss the details of the scheme with:

• the providers of the various forms of ADR;
• the Scottish Courts and Tribunals Service (SCTS). The SCTS will have a strong operational interest in how the scheme will work;
• bodies such as Scottish Women's Aid and Shared Parenting Scotland who work with users of the family court system; and
• the Scottish Legal Aid Board.

13. Finally, the architecture of such a funding scheme would be better drawn up following completion of the pilot of mandatory meetings on alternatives to court (section 24(1) of the 2020 Act).

14. Upon conclusion of the pilot, it is likely to take at least another 12 months to put the agreed scheme into place.