Judicial factors: consultation

Part 3: Safeguarding of property: Children (Scotland) Act 1995 

3.1 The following paragraphs specifically deal with some issues raised by the Accountant of Court in the course of dealing with the safeguarding of property in children.  Please note that any measures outlined in this Part are not yet contained in the draft Bill attached to this paper.

3.2 Sections 9 and 10 of the Children (Scotland) Act 1995 make provision on children’s property being safeguarded in certain circumstances by the Accountant of Court, who is a court appointed officer. The Accountant of Court has raised the following issues with us:

• the circumstances in which the Accountant of Court can draw matters to the attention of the Court;
• whether the Accountant of Court can recall a direction or vary its terms;
• the procedure where no joint minute or subsequent decree has taken place; and 
• any requirement for the court to take into consideration the views of the child where a parent is appointed to act as the child’s legal representative

Drawing the court’s attention to matters arising

Background

3.3 The 1995 Act does not regulate procedure in circumstances where the Accountant of Court wishes to draw a matter to the attention of the Court. The Courts have sometimes questioned whether they have jurisdiction when matters relating to the administration of children’s property are reported to them. 

3.4 This issue could be rectified by specifying in section 9 of the 1995 Act the circumstances where the Accountant of Court may report issues to the court.

3.5 Possible circumstances include any circumstances when a direction of the Court would be in the child’s best interests, but specifically if:- 

• the Accountant of Court suspects that the person appointed fails to comply with a direction or condition in a direction made by the Accountant of Court 
• the parent and guardian appointed fails to notify the Accountant of Court of a change to the parent or guardian or the child’s address, and/or is currently present whereabouts unknown, 
• the parent and guardian appointed fails to provide information or documentation when requested to do so by the Accountant of Court, 
• the parent and guardian appointed suspected to have caused loss to all or part of the child’s property, whether through misadministration or misappropriation.

Pros/Cons

3.6 Allowing the Accountant of Court to draw a matter to the attention of the Court would benefit children as the proposed amendment to section 9 could provide that the Accountant of Court would only draw a matter to the Court’s attention if it is in the child’s best interests. 

3.7 However, further consideration will need to be given as to which court would be best placed to deal with these notifications. 

Question 9

Should the Accountant in Court be able to draw matters of concern to the attention of the relevant sheriff court? 

Yes 

No   

Why did you select your answer above? 

Recalling or variation of directions

Background 

3.8 Section 9(5) of the 1995 Act does not specify whether the Accountant of Court can recall a direction or vary its terms. In practice this is done frequently to allow heritable properties to be bought and sold and to vary maintenance allowances. The 1995 Act could be amended to make it clear that the Accountant of Court may recall a direction or vary its terms. 

3.9 We would need to set out the circumstances in which the Accountant of Court can recall or vary a direction. For example this may be when:

• circumstances relative to the child or the property have changed, or
• the parent or guardian appointed fails to comply with a Direction or condition thereof, made by the Accountant of Court, or
• the parent or guardian fails to notify the Accountant of Court of a change to the parent or guardian’s or the child’s address, and/or is currently present whereabouts unknown, or 
• the parent or guardian fails to provide information or documentation when requested to do so by the Accountant of Court, or
• the parent or guardian is suspected to have caused loss to all or part of the child’s property, whether through misadministration or misappropriation.

Pros/Cons

3.10 Allowing the Accountant of Court to vary or recall directions would reflect the current situation where this is done frequently. It would also allow the direction to be amended as a situation develops. 

3.11 However, further consideration would be needed as to the circumstances where a variation or recall of a direction is appropriate. 

Question 10

Should the Accountant of Court be able to vary or recall directions? 

Yes 

No   

Why did you select your answer above?

Award of damages to children: procedure where no joint minute or subsequent decree has taken place

Background

3.12 Damages actions on behalf of children are often settled outside of court. Therefore, if the matter is not formalised by means of a joint minute of agreement or subsequent court decree section 13 of the 1995 Act regarding award of damages does not apply.

3.13 In these circumstances it is common for the agreed sum of reparation to be paid directly to the pursuer’s solicitor. The solicitor then has the option of retaining the funds until the child is 16, passing the funds to the child’s parents/guardians or applying to the Accountant of Court for a direction. There may be benefit in specifying the procedure where no joint minute or subsequent decree has taken place. 

Pros/Cons

3.14 Setting out the procedure where no joint minute or subsequent decree has taken place may benefit children where there has not been a court case. As mentioned above, damages actions are often settled outside of court. However, this would require further consideration of the procedure in the cases where there has not been a court case. 

3.15 One possibility would be to follow section 13 of the 1995 Act and provide that the person receiving the money must:

• Apply to the court for a judicial factor to be appointed to invest, apply or otherwise deal with the money for the benefit of the child concerned until the child reaches 16; or
• Pass the money to the Accountant of Court to invest, apply or otherwise deal with the money for the benefit of the child concerned until the child reaches 16;
• Pass the money to the child’s parents or guardians to invest, apply or otherwise deal with the money, subject to any directions by the Accountant of Court, for the benefit of the child concerned until the child reaches 16;

Question 11

Do we need to specify the procedure where no joint minute or subsequent decree has taken place? 

Yes 

No   

Why did you select your answer above?

Inheritance of property: taking into account the views of the child where a parent is appointed as the child’s legal representative

Background 

3.16 Parents can sign a Deed of Variation or Family Arrangement on behalf of their children in cases where a child is due to inherit property. This instrument enables beneficiaries of a deceased’s estate to alter the distribution of that estate, for example, to save inheritance tax costs or to avoid the loss of family assets.  In the main they seem to be used in order to postpone a child’s inheritance until they are much older.

3.17 Sections 1(1)(d) and 2(1)(d) of the 1995 Act give a parent the responsibility to act as the child’s legal representative. There is a concern that it would be possible for a parent to sign a Deed of Variation or Family Arrangement which does not take the views of the child into account.  This runs counter to the United Nations Convention on the Rights of the Child (UNCRC).

3.18 Section 6 of the 1995 Act already provides that when a person with parental responsibility is reaching a major decision they should have regard so far as practicable to the views (if the child wishes to express them) of the child taking account of the child’s age and maturity.  However, there is no definition of what constitutes a ‘major decision’ and this provision is largely untested.

Question 12 

Do you agree that the views of the child should be taken into account (where practicable and taking account of their age and maturity) where a parent is appointed as the child’s legal representative? 

Yes 

No   

Why did you select your answer above?

Question 13

(a) What would be the most proportionate way of ensuring that a child’s views are taken into account?

(b) Would it require legislative change (please provide details)?

Yes

No

Don’t know