Family Justice Modernisation Strategy

Part 3: Contact Background

3.1 The consultation on the review of the 1995 Act sought views on a number of areas in relation to contact between children and various individuals who are important to them, in particular:

• the use of child contact centres to maintain relationships with an individual a child does not live with;
• a child’s relationship with grandparents; and
• ensuring that orders under section 11(1) of the 1995 Act are complied with. Child contact centres

3.2 Child contact centres are safe venues for conflict-free contact between children, parents and other people in the child’s life. Contact centres offer a mixture of supported and supervised contact. Supported contact is where there is no significant risk to the child and therefore contact centres only record that the contact took place and not details of how it went. Supervised contact is where contact takes place in the constant presence of an independent person who observes and ensures the safety of those involved. Contact centres also provide a handover service where one parent drops the child off to be picked up by the other parent. This means that the parents don’t have to see each other during the handover.

3.3 There are currently 41 contact centres across Scotland who are members of Relationships Scotland. In addition, the Scottish Government are aware of three independent centres (i.e. not part of the Relationships Scotland network) in Aberdeen, Inverclyde and Glasgow.

3.4 Contact centres are not currently subject to any regulation in relation to the standard of accommodation or training of staff.

Child contact with grandparents

3.5 The Scottish Government recognises the important role that grandparents can play in many families in relation to bringing up children. Research shows that grandparents may be an important source of support for their grandchildren particularly at times of family crisis, such as parental divorce.^[12]

3.6 Section 11(3)(a)(i) of the 1995 Act allows any person who does not have (and has never had) parental responsibilities or rights but who ‘claims an interest’ in a child to apply to the court to seek an order in relation to contact. This provision could allow a grandparent to apply to the court to seek contact with their grandchild.

3.7 In 2006 the Scottish Government introduced the Charter for Grandchildren.^[13] This highlights the role of the wider family and it sets out that grandchildren can expect, amongst other things, to know and maintain contact with their wider family except in very exceptional circumstances.

3.8 In April 2018 the Scottish Government published Your Parenting Plan,^[14] providing a comprehensive guide for parents who live apart or who are separating on agreeing practical arrangements for the care and wellbeing of their children. Included in this was a republication of the 2006 Charter for Grandchildren, further promoting the importance of grandparents and the wider family in a child’s life. The guide also contains useful information on sources of specialist support and advice for parents and others with parental responsibilities and rights.

Ensuring that orders under section 11(1) of the 1995 Act are complied with

3.9 Currently, if someone believes an order under section 11(1) of the 1995 Act has not been complied with, the person can go back to court and:-

• seek a further order (such as a variation of the order or a switch in residence); and/or
• ask the court to hold the person breaching the contact order in contempt of court.

3.10 An application to vary a section 11 order is made to the court that originally granted the order. This can be done by a minute which details the changed circumstances and asks the court to vary the order. The other party is allowed to reply to this application. The court can either make an interim variation based upon written submission by parties or can require a hearing.

3.11 Concerns have been raised by some stakeholders that resident parents are deliberately not complying with orders, whilst other stakeholders argue that orders have not been complied with due to safety concerns for the child in question.

Aim

Child contact centres

3.12 The Scottish Government believes that establishing minimum standards for contact centres and their staff in relation to training and accommodation will help ensure that all contact centres are safe locations.

3.13 The Scottish Government considers that all referrals by courts in section 11 cases and by lawyers should be to a regulated centre.

Child contact with grandparents

3.14 The Scottish Government wants to make Scotland the best place in the world for children and young people to grow up. The 2012 National Parenting Strategy highlights the importance of creating and maintaining healthy relationships within families and communities. The Scottish Government recognises the importance of parents and the wider family, including grandparents, in a child’s life and wants to ensure that grandchildren can expect, amongst other things to know and maintain contact with their wider family, except in very exceptional circumstances.

Ensuring that orders under section 11(1) of the 1995 Act are complied with

3.15 The Scottish Government considers that it is in the best interests of the child involved for orders under section 11(1) of the 1995 Act to be complied with.

3.16 Where an order is not complied with there may be in some cases a simple explanation, for example the child was unwell. In other cases, the situation may be more complex, for example, where concerns are raised about the safety of the child in question. The Scottish Government considers that understanding the reasons behind non-compliance could help the court to ensure the order remains in the child’s best interest.

Actions

Child contact centres

3.17 Section 9 of the Children (Scotland) Bill gives the Scottish Ministers the power to regulate the provision of contact services including minimum standards in relation to training of staff and accommodation for contact centres. The Bill also gives the Scottish Ministers the power to appoint a body to oversee the standards and report on the standards on a regular basis. The Bill provides that where a court in a section 11 case orders contact at a contact centre, this must be at a regulated centre.

3.18 The Scottish Government has been meeting with Relationships Scotland and also the three independent centres. These discussions include how contact centres can improve in advance of legislation. The Scottish Government will continue to meet regularly with contact centres.

3.19 The Scottish Government will write to the Law Society of Scotland and Faculty of Advocates to seek their views on issuing guidance encouraging lawyers when referring clients to a contact centre to refer them to a regulated centre.

Contact with grandparents

3.20 The Scottish Government has not included a specific provision in the Bill on the relationships between a grandparent and a child as the Scottish Government believes that such a provision could cut across the key principle in the legislation that the welfare of the child is the court’s paramount consideration. In addition, making specific provision in respect of grandparents would also raise questions on whether there should be specific provision for other family members.

3.21 However, the factors to be considered before making an order in section 12 of the Bill requires the court to consider, when deciding whether or not to make an order, the effect that the order might have on the child’s important relationships with other people. This could include the child’s relationship with their grandparents.

3.22 The Scottish Government proposes to continue to promote the Charter for Grandchildren.

Non – compliance with orders under section 11(1) of the 1995 Act

3.23 The Scottish Government considered whether to amend the existing procedure for when an order has not been complied with. The Scottish Government does not consider the option of making a breach of a contact order a criminal offence to be a useful option as this could mean more family cases would be dealt with in the criminal court. In addition, it may be disproportionate to introduce criminal offences in this area given that the person would receive a criminal record.

3.24 The Scottish Government also considered whether to create a new enforcement route outwith contempt of court. This could allow the court to order an individual to attend a parenting class, mediation or unpaid work. The Scottish Government is aware of concerns about the use of mediation in circumstances where there has been domestic abuse. There are also concerns that requiring a person to attend a parenting class or do unpaid work may take a parent away from a child and could have a negative impact on the child.

3.25 Therefore, the Scottish Government has not amended the contempt of court route but has included in section 16 of the Bill provision that places a duty on the court to investigate the reasons for non-compliance with an order. This can be done either by the court itself or by the court appointing a Child Welfare Reporter. This option was supported by consultation responses.