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

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

6. 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 in a number of areas.

7. Section 23(5) of the 2020 Act provides that "any scheme set up, or arrangement made … must be framed so that assistance under it is only available to meet the costs of alternative dispute resolution procedures that ensure regard is had to children's views to at least the same extent as a court would be required to have regard to them by section 11ZB of the Children (Scotland) Act 1995".

8. Scottish Government has engaged with providers of ADR in family cases on how regard is had to children's views when ADR takes place.

9. The Family Law Arbitration Group Scotland have published guidance for arbiters in child law cases: Arbitration – decisions relating to children - guidance for arbitrators re (flagsarb.com). Relationships Scotland refer to a Code of Professional Conduct for Family Mediators and Practice Standards for Family Mediators: What happens at mediation – Relationships Scotland (relationships-scotland.org.uk). Children 1^st have information in their published guide on family group decision-making: fgdm-leaflet-update.pdf (children1st.org.uk).

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 options for funding the scheme.
• the eligibility criteria for assistance.
• how to ensure the voice of the child is heard in ADR, taking account of information provided from providers on this (as discussed above).
• ensuring that domestic abuse victims are not forced to go to ADR.
• how the new assistance scheme will fit with the legal aid system.
• how the new assistance scheme fits with wider reviews of Mediation and Dispute Resolution.
• 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^[2] need to be proposed.
• 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.
• the Scottish Legal Aid Board.

13. It is likely to take at least another 18 months to fulfil the duty. In broad terms, this consists of 6 months to agree the details of the scheme and then another year to put the agreed scheme into place.

14. Work in the second year could include:

• preparing regulations under section 23(9) of the 2020 Act.
• proposing changes to court rules.
• public facing guidance.
• putting the funding in place.
• putting measures in place to monitor the effectiveness of the scheme.