Children (Scotland) Act 2020 - section 23(1) and section 24(1): second 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).

7. Further time is required to consider the best way of establishing this assistance scheme. The Scottish Government has given initial consideration to two potential options but more work is needed. The two potential options were set out in the first report to Parliament. These would be either to:

• operate a scheme so that eligible individuals involved in a case under section 11 of the Children (Scotland) Act 1995 could claim assistance from a Scottish Government funded scheme. This scheme might not actually provide cash to the individuals but instead might give them an entitlement to ADR sessions. The Scottish Government could then fund providers of ADR so the sessions could then take place; or
• fund providers so ADR sessions could be provided and advise eligible individuals, through publicity on the Scottish Government website and elsewhere, that this has been done. (The Scottish Government does already provide funding to the Relationships Scotland network and part of that funding is for mediation and for couple counselling. Legal aid resources are also used to support mediation).

8. The Scottish Government is aware of the Family Mediation Voucher Scheme - GOV.UK (www.gov.uk) being established south of the border for a time-limited period. We will consider if any lessons can be drawn from this scheme.

9. However, as stated in the first report to Parliament there are a variety of forms of ADR which may be used in family cases. These include mediation, arbitration, collaborative law and family group conferencing. When preparing a scheme under section 23, the Scottish Government will need to take account of all forms of ADR which can be used in family cases.

10. The Scottish Government will also need to take account of section 23(5) which 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”.

11. Section 23(5) will require the Scottish Government to engage with providers of ADR in family cases and with other key stakeholders on how regard is had to children’s views when ADR takes place.

12. 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.

13. On why the duty has not been fulfilled, there are a number of detailed issues which the Scottish Government need to consider further. These include:

• the options for establishing the scheme
• the eligibility criteria for assistance
• how to ensure the voice of the child is heard in ADR (as discussed briefly in paragraphs 10 and 11 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.

14. In addition, the Scottish Government will need to discuss the details of the scheme with:

• the providers of the various forms of ADR. (As indicated above, the Scottish Government will engage with providers of ADR in family cases and with other key stakeholders on how regard is had to children’s views when ADR takes place).
• 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

15. It is likely to take at least another two years to fulfil the duty. In broad terms, this consists of a year to agree the details of the scheme and then another year to put the agreed scheme into place.

16. 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.