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

Pilot of mandatory meetings on alternatives to court

15. The Scottish Ministers have not fulfilled their duty under section 24(1) of the 2020 Act to establish a pilot of mandatory meetings on alternatives to court. However, work is progressing on these provisions.

16. The Scottish Government is proceeding on the basis that:

• the meetings under section 24 should be individual.
• if provision to establish a pilot scheme is required, this should be done by regulations made under section 23(6) rather than by way of a Practice Note. Regulations under section 23(6) are subject to the affirmative procedure.
• Facilitators of the meetings should ask those attending to consider how the views of the child have been and will be sought. As noted above, the Scottish Government have engaged with providers of ADR to find out how they ensure regard is had to children's views when ADR takes place.

17. In January 2022 the Scottish Government held a session with ADR providers to discuss how the pilot could work.

18. The organisations who attended were:

• Calm Scotland^[3]
• Children 1^st[4]
• Consensus Scotland^[5]
• Family Law Arbitration Group Scotland^[6]
• Relationships Scotland^[7]
• Scottish Arbitration Centre^[8]
• Scottish Mediation^[9]

19. The agenda included the following discussion points:

• Ensuring all forms of ADR are included in the pilot.
• Coverage of ADR across Scotland.
• How the voice of the child is heard in family ADR.
• Potential way forward.

20. A minute of the meeting is included at Annex A.

21. In terms of next steps, the Scottish Government is now considering the following issues:

• who should facilitate the meetings.
• what training the facilitators should receive.
• the nature of the information provided to parties.
• how the pilot should be evaluated.
• what resources will be required.

22. As well as continuing discussions with ADR providers, the Scottish Government also plans to convene a further session with other key stakeholders, such as Scottish Women's Aid, Shared Parenting Scotland and Citizens Advice Scotland.

23. Section 24(4) 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.

24. On why the duty has not been fulfilled, the timescales for the pilot were discussed at the session with ADR providers. It was acknowledged that work will be required up-front, before the pilot could start. This work will include:

• the training of facilitators and time for facilitators to prepare.
• the development of information for parties, including time to produce the information and seek views on it.
• the development of any secondary legislation.
• any proposals to change court rules^[10].

25. In line with what was set out in the previous report to Parliament, this this also suggests that the pilot itself would be unlikely to commence until at least mid-2023.

Scottish Government

June 2022