Introduction: The Children (Scotland) Act 2020 has been described as a landmark legislation that should transform how children experience court cases in relation to contact and residence matters. For parents in Aberdeen and across Scotland, this Act brings important changes that strengthen children’s rights and their safety in family disputes. Here XK Family Law Solicitors breakdown the key updates, focusing on how the law now elevates a child’s voice and a child’s welfare in custody matters.
All Children Can Have Their Say
Under the previous law (Children (Scotland) Act 1995), only children aged 12 or over were presumed mature enough for their views to be taken into account. However, in practice, children much younger were often provided the opportunity to have their say. Regardless, the 2020 Act abolishes that age presumption and instead starts with the assumption that every child is capable of forming a view, regardless of age. In practice, this means even very young children could be given a chance to express their feelings and opinions about their living arrangements or about contact with a parent, so long as they are willing and able to do so. The court must provide an opportunity for the child to share their views and must listen to those views, considering the child’s age and maturity. The only exceptions are if the child is truly too young to understand (which must be convincingly shown) or if it’s impossible to get the child’s input (for example, the child’s whereabouts are unknown).
Child-Friendly Ways to Express Views
Crucially, the Act requires that children be allowed to express their views in whatever way suits them best. Where an older approach involved filling out a standard form (Form F9) or a formal interview (usually by way of a Child Welfare Reporter), the new law is much more flexible. The child can choose the manner they prefer to communicate. This might be talking directly to the Sheriff or a Child Welfare Reporter, but it could also be writing a letter, drawing a picture, making a video, or using play therapy techniques. The idea is to make the experience as comfortable as possible so the child’s feelings can be expressed. Only if the child has no preference (or if their preferred method is unreasonable in the circumstances) will the court will decide how to obtain the views of the child. By letting children use their own voice in their own way, the law aims to get a more honest and insightful input, allowing the Sheriff to make better-informed decisions.
Listening to Everyone with Parental Rights
While the child’s voice is paramount, the new Act also says decision-makers should, as far as practicable, consider the views of anyone else who has parental responsibilities and rights in relation to the child. In other words, both parents (and any other guardian with parental rights and responsibilities) should have their opinion taken into account in proceedings. This doesn’t mean those views will override the child’s welfare, but it ensures all perspectives are heard when making important decisions about the child.
Welfare of the Child Comes First (Paramountcy Principle)
The 2020 Act reinforces that the child’s welfare is the top priority in any dispute about parental responsibilities. This “welfare principle” has long been part of Scottish law, but the new Act cements it in updated terms: when a court is deciding anything under section 11 (like contact or residence orders), the child’s welfare “shall be the court’s paramount consideration.”. The court must put the child’s well-being above all else, above either parent’s wishes or any other factors. Additionally, the Act maintains the “no orders without benefit” policy. If the court Order sought does not make the child’s life better, then no court Order should be made. That is the bar that must be reached… the Order must be in the child’s best interest or a section 11 court Order cannot be made. In plain terms, Sheriffs will avoid unnecessary intervention, they won’t issue orders just for the sake of it. An order will only be made if it’s deemed better to make the Order than to leave things as they are. This principle encourages parents to work out agreements amicably where possible, and ensures that court orders are truly needed and helpful for the child.
Aligning with Children’s Rights
Through these changes – amplifying children’s voices, prioritizing welfare, and safeguarding against abuse – the Children (Scotland) Act 2020 brings Scottish family law more in line with modern children’s rights standards. It reflects principles of the United Nations Convention on the Rights of the Child, ensuring that a child has the right to be heard and that their best interests are central in any decision affecting them. In fact, experts note that the Act significantly improves how the justice system will respect children’s participation rights and best interests in contact and residence disputes.
Conclusion: For parents navigating a separation or custody dispute, these reforms mean the court process should be more attuned to your child’s needs and feelings than ever before. Every family situation is unique, and our Aberdeen family law solicitors are here to help you understand how these new rules might apply in your case.
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