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

Pilot of mandatory meetings on alternatives to court

17. 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 has progressed on these provisions.

18. The Scottish Government shared an initial policy paper on the pilot of the mandatory meetings on alternatives to court with a variety of organisations during the first reporting period. The first report included this paper at Annex A. The Scottish Government has received responses from organisations. A number of themes emerged from the responses:

• concern that the pilot could focus too much on mediation and exclude other forms of alternative dispute resolution (ADR) used in family cases
• whether the voice of the child would be heard in the meetings
• how the exemption from attending a meeting where there has been a proven or alleged history of abuse would work
• a preference for the pilot being set out in regulations rather than in a Practice Note
• the meetings should be individual rather than both parties attending at the same time
• there is need to consider where pilots should take place and how many meetings would be required for evaluation purposes.

19. Following this feedback, the Scottish Government considers 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.

20. On voice of the child, the Scottish Government agrees that the facilitators of the meetings should ask those attending to consider how the views of the child have been and will be sought. In addition, the facilitator will need to emphasise to those attending that the welfare of the child at the centre of the case must be the paramount consideration. As the Scottish Government will be funding the pilot, the funding conditions could lay down these requirements on the facilitators of the meetings.

21. It will also be important to ensure that any subsequent ADR following the meeting obtains the views of the child. As noted above, section 23 of the 2020 Act, on funding for ADR in family cases makes provision in subsection (5) that assistance should only be made available to meet the costs of ADR which ensures regard is had to children’s views. The Scottish Government will engage further with providers of ADR services in family cases on how they ensure regard is had to children’s views when ADR takes place.

22. On the exemption when there has been abuse, section 24(2)(b) of the 2020 Act provides that the pilot of mandatory meetings on alternatives to court must not apply to proceedings in which there is a proven or alleged history of abuse between some or all of the parties. Therefore, if a party declares that there has been proven or alleged abuse a meeting should not take place. Under the terms of section 24, a party would not need to provide evidence of the abuse for the exemption to apply.

23. If during a meeting under section 24, a facilitator becomes aware that that there is a proven or alleged history of abuse between some or all of the parties then the facilitator should stop the meeting. If required so the case can proceed to court, the facilitator could issue a certificate to confirm that a meeting had been attended.

24. The Scottish Government agrees it is important that the pilot covers all forms of ADR and that when a party attends a meeting, the party is given information on the various forms of ADR in family cases. The Scottish Government will discuss further with ADR providers how this can best be achieved.

25. 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.

26. On why the duty has not been fulfilled, further work is required to:

• ensure the pilot covers all forms of ADR used in family cases
• ensure facilitators of the meetings ask those attending to consider how the views of the child have been and will be sought
• consider if regulations are needed and, if so, prepare them accordingly
• consider if changes need to be proposed to court rules
• agree exactly how the required pilot is to be evaluated.

27. It is likely to take at least another year before the Scottish Government is in a position to:

• agree the terms of the scheme with ADR providers
• lay any required regulations under section 24(7) before Parliament
• send any required policy paper on proposed changes to court rules to the Family Law Committee of the Scottish Civil Justice Council.

28. This means the pilot itself would be unlikely to commence until at least mid-2023.