Children (Scotland) Act 2020 - alternatives to court and funding of alternative dispute resolution pilots: report

Introduction

1. Section 23(1) of the Children (Scotland) Act 2020 (the 2020 Act) requires the Scottish Ministers to—

(a) set up a scheme to make assistance available so that individuals can meet the costs of alternative dispute resolution procedures in relation to a dispute involving any of the matters mentioned in section 11(1) of the Children (Scotland) Act 1995 which has either resulted in an order being sought under that section or is likely to do so if it is not resolved through alternative dispute resolution; or
(b) arrange assistance to be made available from the Scottish Legal Aid Fund so that individuals can meet those costs

2. Section 24(1) of the 2020 Act requires the Scottish Ministers to arrange a pilot scheme under which a court, in proceedings to which the scheme applies, may only make an order under section 11(1) of the 1995 Act –

(a) where the parties to the proceedings have attended a meeting at which the options available to resolve the dispute giving rise to the proceedings are explained, or
(b) if the terms of the scheme allow, where the court has decided on cause shown that it would not be appropriate to require the parties to attend such a meeting.

3. If, at the end of a period described respectively in section 23(8) or 24(5), the Scottish Ministers have not fulfilled the relevant duty, sections 23(7) and 24(5) each require the Scottish Ministers to lay before the Scottish Parliament a statement explaining why not and stating when they expect to do so.

4. The Scottish Government believes that where possible cases should be resolved outwith court. Work has progressed on both establishing the pilot of the meetings on alternatives to court and on funding of ADR.