Part 1 of the Children (Scotland) Act 1995: review

Part 4: Contact

Introduction

4.01 This part of the consultation is on the subject of a child’s contact with various individuals who are important to them. Section 11 of the 1995 Act give powers to the Court of Session and Sheriff Court to make an order setting out the arrangements for maintaining personal relations and direct contact between a child and a person whom the child is not living with.

4.03 Article 8 of the UNCRC provides that a child has the right to preserve family relations. The Implementation Handbook to the UNCRC ^[29] lists grandparents and siblings as family relations.

4.04 This part of the consultation seeks your views on:

• Child contact centres;
• Child relationships with family members generally;
• Child contact with grandparents;
• Child contact with siblings;
• Contact between children who are looked after away from home; and
• Complying with contact orders.

Child Contact Centres

Background

4.05 Child contact centres can play an essential role in helping children whose parents have separated to maintain relationships with the parent they no longer live with or with other family members. We discuss this later in the consultation but there is evidence to show that a child benefits from both parents being involved in their life.

4.06 There are currently 44 contact centres across Scotland which are managed by Relationships Scotland. In addition, there are four independent centres in Aberdeen, Inverclyde, Paisley and Glasgow.

4.07 The contact centres managed by Relationships Scotland all follow National Standards and Practice Procedures for Child Contact Centres. Relationships Scotland has policies which cover issues such as domestic abuse, child protection, equality and diversity, confidentiality and vulnerable adults. Some of the independent contact centres have their own guidance on practices and procedures.

4.08 The contact centres offer a mixture of supported contact 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.

4.09 In 2016/17, 1427 children and 1309 families used the contact centres managed by Relationships Scotland for both supervised and supported contact. Approximately 24 to 30 children per year use the Paisley Child Contact Centre. In 2017, 76 children from 58 families used the Inverclyde Child (Family) Contact Centre. 376 children used the Promoting Positive Contact centre in Glasgow between February 2017 and February 2018. The VSA contact centre in Aberdeen facilitated contact for 23 families in 2015/16.

4.10 Contact centres can also be a venue to pick up and drop off children who are spending time with an adult who they do not live with. Staff can support the handover of the child if the adults do not want to meet each other.

4.11 Use of a contact centre can be ordered by a court or people may be referred to a contact centre by a body such as a social work department. Some centres accept self-referrals. Data from Relationships Scotland shows that in 2016/17 47% of contact cases were self-referral, 14% of cases were ordered by courts, 24% were referred by solicitors, 10% were referred by agencies such as NHS and Social Work and 5% other. Two of the current 24 families using the Paisley Child Contact Centre are self-referrals. In 2017, Inverclyde Child Contact Centre had four self-referrals, four referrals from social work departments, 13 arranged through lawyers and 37 ordered by courts. Between February 2017 and February 2018 the Promoting Positive Contact centre in Glasgow had 316 contacts ordered by courts and 60 self referrals or private arrangements.

4.12 There may be charges for using a contact centre and these vary from centre to centre. Those centres managed by Relationships Scotland have broad guidelines agreed at a national level on charges. Where charges are made, these are often funded by legal aid.

4.13 There is a public petition in the Scottish Parliament ^[30] calling for a review of the current system in relation to the operation of child contact centres to ensure the rights, safety and welfare of children are paramount.

4.14 It would be possible to regulate contact centres. This would involve primary legislation giving the Scottish Ministers powers to make regulations in a number of areas such as:

• Setting minimum standards for the accommodation used by contact centres;
• Laying down training requirements for staff around key issues including domestic abuse; and
• Laying down a complaints procedure that individuals can use.

4.15 There could also be independent inspection of child contact centres by a body such as the Care Inspectorate.

4.16 In England, Wales and Northern Ireland, CAFCASS will only refer an individual to a contact centre which is a member of the National Association of Child Contact Centres ^[31] ( NACCC). This requires accreditation which shows that the centres have met agreed national standards. This accreditation is renewed every three years. National standards are set on: contact centre management; centre staffing; training; confidentiality; domestic abuse and health and safety issues.

Pros/Cons

4.17 There are advantages and disadvantages of regulating contact centres. The main advantage is that there would be clear standards for contact centres to follow. This could benefit children and their parents.

4.18 In relation to potential disadvantages, setting minimum standards across the board could lead to some local contact centres shutting if, for example, they could not meet minimum accommodation standards. This could have a detrimental effect on children as they may have to travel further to have contact.

4.19 Relationships Scotland are already committed to improving standards and have recently undertaken a benchmarking exercise. They are working with the NACCC on this.

4.20 There would be significant cost implications to regulating contact centres. Some of the proposed regulation would build on existing work by the contact centres. However, additional requirements in relation to the accommodation (bearing in mind that contact centres may use premises originally designed for another purpose and that centres may only be open for a few hours per week) would have costs. Similarly, additional requirements in relation to training would have costs.

4.21 Any regulation might need to take account of the different roles carried out by staff and volunteers at centres. There would also be costs in relation to any independent inspection regime.

4.22 We would also need to be clear exactly what would be regulated. The proposal being put forward in this consultation is that only places used wholly or mainly as child contact centres when there is a dispute between private parties (such as parents) would be regulated.

Question 6): Should child contact centres be regulated?
Yes
No
Why did you select your answer above?

Child relationships with family members generally

4.23 When parents of a child split up or where children are cared for outwith the family home, children should be able to grow up with or continue to have relationships with family members, other than the parents themselves, who are important to them.

Question 7): What steps should be taken to help ensure children continue to have relationships with family members, other than their parents, who are important to them?

Child contact with grandparents

Background

4.24 According to figures from Growing Up in Scotland, close to 99% of children aged six in the survey had at least one living grandparent and 80% had three or more living grandparents ^[32] .

4.25 Many children have close relationships with people other than their parents. This can include grandparents, sisters, brothers, aunts, uncles and cousins. Grandparents can play a major role in many families in relation to bringing up children.

4.26 Research has shown that grandparents may be an important source of support for their grandchildren particularly in times of a family crisis such as a parental divorce. ^[33] Some studies have also shown that a close relationship with grandparents can improve the way children manage their emotions after a parental divorce. ^[34]

4.27 Where family relationships break down, section 11 of the 1995 Act allows any person who does not have parental responsibilities or rights but who ‘claims an interest’ in the child to apply to the court to seek an order in relation to contact. Therefore, a grandparent can already make an application to the court to seek contact with their grandchild.

4.28 The Charter for Grandchildren ^[35] was introduced in 2006, and has recently been republished. This aims to highlight the role of the wider family. It says that grandchildren can expect amongst other things to know and maintain contact with their family except in very exceptional circumstances.

Proposal in relation to Grandparents

4.29 We are seeking your views on whether there should be a presumption in section 11 of the 1995 Act that children should have contact with their grandparents. If any such presumption should be added to section 11, the starting position of the court would be that children benefit from contact with their grandparents. Any such presumption would be rebuttable.

4.30 If any presumption that children benefit from contact with their grandparents should be added to section 11, we would assume this would also be influential in contact disputes which are settled by private agreement outwith court.

4.31 A contact right for grandparents was considered in the lead-up to the Family Law (Scotland) Act 2006 (the 2006 Act). The Policy Memorandum prepared by the then Scottish Executive for the Bill which became the 2006 Act outlines why the then Scottish Executive decided at the time against any legislative changes in this area ^[36] .

4.32 There are some examples in other countries where a child’s right to have contact with their grandparents is set out in legislation. Some provinces in Canada have passed legislation to support contact between a child and their grandparents. In New Zealand, the Care of Children Act 2004 ^[37] extends the group of people who could apply for parenting orders to include any other person who is a member of the child’s family, ‘whanau’, or other culturally recognised family group. In Australia, the law is based on the principle of the best interests of the child and provides for continuing contact with any persons significant to the care of the child which includes grandparents.

Pros/Cons

4.33 The benefits of introducing such a presumption include:

• Evidence shows that in certain circumstances contact with grandparents can reduce stress and is beneficial for grandchildren; and
• A presumption might reflect the role many grandparents play in bringing up their children.

4.34 However, there are a number of arguments against introducing any such presumption including:

• It might cut across the provisions of the legislation that the welfare of the child is paramount; on no order being made unless the court considers it better for the child that an order be made than that none should be made at all; and on the child expressing views;
• In some cases, it is possible that contact with a grandparent can lead to contact with an unsuitable parent;
• A presumption could lead to more people having rights over a child which may go against the key principle that the welfare of the child is paramount;
• A child’s close relationship may be with someone other than a grandparent;
• A grandparent can already seek contact with their grandchild by applying to the court; and
• No case is the same and each case should be considered on its own merits.

Question 8): Should there be a presumption in law that children benefit from contact with their grandparents?
Yes
No
Why did you select your answer above?

Child contact with siblings

Background

4.35 Many families have complex structures with full, half and step siblings. Research has shown that children’s perception of brothers and sisters and who is in their family is rooted as much in their living experience as in biology ^[38] .

4.36 “Sibling” could include full sibling, half sibling, step sibling by means of marriage or civil partnership, sibling through adoption, and any other person the child regards as their sibling and with whom they have an established family life. For example, a sibling might include a foster child, living in the same family.

4.37 Scottish Government Guidance on Looked After Children ^[39] recognises the need for contact with siblings living outwith the family home as being as important as contact with parents.

4.38 It is possible for a person to have contact with a sibling by seeking an order from a court. Section 11(2)(d) of the 1995 Act provides that the court may make an order regulating the arrangements for maintaining personal relations and direct contact between a child under 16 and a person with whom the child is not, or will not be living.

4.39 However, we are aware that there may be confusion over whether a court can make an order under section 11 of the 1995 Act to grant a person contact with a child without giving that person PRRs. Section 11(2)(b) of the 1995 Act provides that a person on whom PRRs are imposed must be at least 16 (or a parent of the child).

4.40 We are seeking views on whether to amend section 11 of the 1995 Act to make it clear that a person under the age of 16 may apply for contact with a sibling without being granted PRRs.

4.41 We discuss the broader option of amending section 11 of the 1995 Act to clarify that a court may award contact to any individual without awarding PRRs in part 7 of this consultation.

4.42 If the contact order should be breached, enforcement would be in line with usual procedures – i.e. raise an action seeking to hold the breacher in contempt of court. Paragraphs 4.45 - 4.63 of this consultation discuss enforcement of contact orders more generally.

Pros/Cons

4.43 The main advantage of clarifying the law would be that this could increase the number of people under the age of 16 who are granted contact with their siblings.

Question 9): Should the 1995 Act be clarified to make it clear that siblings, including those aged under 16, can apply for contact without being granted PRRs?
Yes
No
Why did you select your answer above?

Contact between children who are looked after away from home

4.44 For children in care the importance of maintaining established family life between children who have lived together is recognised in the Looked after Children (Scotland) Regulations 2009 and subsequent Guidance. The Guidance ^[40] says that:

“Local authorities should try to ensure that siblings are placed together, except where this would not be in one or more of the children’s best interests. Where this proves impossible, they should, wherever possible be placed near each other. Where it is not in children’s best interests for them to be placed together or this has proved unachievable, then it may be appropriate for frequent contact to be maintained.”

4.45 We are seeking your views on whether anything can be done to strengthen the existing guidance, to help ensure a child can keep in touch with other children they have shared family life with.

Question 10): What do you think would strengthen the existing guidance to help a looked after child to keep in touch with other children they have shared family life with?

Complying with contact orders

4.46 We are seeking your views on how contact orders should be enforced.

Background

4.47 Currently, if a person believes a contact order is breached the person can go back to court and either seek a variation of the contact order or seek to hold the person breaching the contact order in contempt of court.

4.48 The Scottish Government’s understanding is that the penalties for contempt of court following a breach of a contact order are laid down in section 15 of the Contempt of Court Act 1981. This provides for civil cases that:

• The maximum penalty which may be imposed for contempt of court by the Court of Session is two years’ imprisonment or an unlimited fine or both.
• The maximum penalty which may be imposed for contempt of court by the sheriff court is three months’ imprisonment or a fine of level 4 on the standard scale or both.

4.49 This area has attracted considerable attention and there has been previous research and work. In relation to research, a survey in 2006 of sheriff clerks’ perspectives of child contact enforcement suggested that issues of non-compliance were very low and were reported as generally being 5% or less of family actions or court business. ^[41] The then Scottish Executive also published a literature review in 2007 on “Dealing With Child Contact Issues: A Literature Review of Mechanisms in Different Jurisdictions”. ^[42] There has also been research on enforcement in England and Wales ^[43] and a comparative study on enforcement across the EU ^[44] .

4.50 During the Parliamentary passage of what became the 2006 Act, the then Scottish Executive announced a Family Contact Facilitator pilot project. The Executive at the time said that data on contact and contact enforcement was not reliable and a pilot project to test whether access to a facilitator would assist sheriffs in family cases where there was breach, or the risk of breach, of a contact order could be useful.

4.51 A procurement exercise to secure a host organisation which would recruit and manage the post-holders in two Sheriff Courts was run. However, the procurement exercise did not attract a tender which met the specifications. It was therefore not possible to let the contract and proceed with the pilot.

4.52 An amendment was also added at stage two of the Bill which became the 2006 Act. This required the court when making or varying a contact order to attach a notice warning of the consequences of failing to comply with the contact order. This was aimed as a deterrent for non-compliance. This amendment was removed at stage 3 of the Bill ^[45] as it was seen as possibly being unduly intimidating to warn parents, before either of them had done anything wrong, of the consequences of non-compliance.

4.53 In 2014, there was a public petition in the Scottish Parliament which, amongst other points, discussed enforcement of contact orders ^[46] . The Scottish Government held a roundtable discussion in January 2017 with a number of stakeholders on enforcement of contact orders ^[47] . The majority of the stakeholders agreed that it is inappropriate to jail someone for failing to obey an order.

4.54 There have also been relevant court cases. In one recent case in the Court of Session ^[48] , the Court said in paragraph 62 of its judgment:

“ It is not uncommon for disputes between former partners involving contact with children to be both acrimonious and emotional. A failure on the part of one parent to comply with court orders for contact, even where deliberate, may be an instinctive shying away from the immediate prospect of contact rather than some calculated or pre-planned refusal to comply with the order of the court. Ultimately, the court must enforce its orders, but in many cases the contempt proceedings themselves will provide a salutary reminder to the defaulting party of the need to comply. A custodial sentence, particularly on a mother with whom the children live, should only be imposed with reluctance and as a last resort.”

Pros/Cons

4.55 There are a number of potential options in relation to the enforcement of contact orders. Some of these are outlined below. It may be possible to combine some of the options.

First option – no change

4.56 The first option is maintain the current situation. The main argument for keeping imprisonment as an option where a court order has been breached is that imprisonment should be available as a last resort.

4.57 There is also the argument that orders made under section 11 of the 1995 Act are private law cases. Therefore, it should be for one of the parties to alert the court that there has been a breach of the contact order.

Second option – alternative sanctions

4.58 The second option is for primary legislation to lay down alternative potential sanctions for a person held to be in contempt following the breach of a contact order.

4.59 This option reflects that there are also arguments that imprisonment is not the most appropriate sanction for failure to comply with a contact order. In addition, imprisonment of the mother may not be in the best interests of the child as research has shown that imprisonment of the parent with residence can have a negative impact on the child’s health ^[49] .

4.60 Alternative sanctions could require the breacher to undertake unpaid work or attend a parenting class or order compensation for any financial loss incurred. The potential advantages of this option are that this would give the court more flexibility and would offer more child-friendly options. Another possibility is to impose a civil penalty such as a fine when a person is held in contempt following a breach of a contact order.

4.61 The disadvantages are that contempt of court is a serious matter and the penalties should reflect this. Alternative sanctions may not encourage a family to work together. In addition, further consideration would need to be given as to the consequences of not complying with an alternative sanction and whether this could result in imprisonment.

Third option – criminal offence

4.62 The third option is that primary legislation could make it a criminal offence to breach a contact order. Penalties could be non-custodial and could include unpaid work and requiring a person to attend a parenting class.

4.63 The advantages of this option are that enforcement would be for the police rather than for an individual and penalties could be less severe than current penalties for contempt.

4.64 The disadvantages of this option are that it may be heavy-handed to introduce criminal offences in this area as a person would receive a criminal record. It may also not improve the current situation. There could also be significant resource implications.

Question 11): How should contact orders be enforced?
Please select only one answer.
a) Option one: no change to existing procedure.
b) Option two: alternative sanctions. (eg unpaid work, attending a parenting class or compensation).
c) Option three: making a breach of a contact order a criminal offence with penalties including non custodial sentences and unpaid work.
d) Another option (please specify).
Why did you select your answer above?