The Scottish Government

« Previous | Contents | Next »

Listen

'Voice of the Child' Under the Children (Scotland) Act 1995: Volume 1-Mapping Paper

Executive Summary

The mapping paper - background and aims

The Children (Scotland) Act 1995 brings together aspects of family, child care and adoption law that affect children. The Act deliberately seeks to incorporate the 3 key principles of the United Nations Convention on the Rights of the Child (UNCRC) - i.e. non-discrimination (Article 2); a child's welfare as a primary consideration (Article 3); and listening to children's views (Article 12) - into Scottish legislation and practice.

This 'mapping paper' undertakes a detailed analysis of the Act, and accompanying regulations and guidance, asking the following questions:

Relevant reported case law is considered.

The mapping paper is part of a feasibility study, funded by the Scottish Executive. The feasibility study sought to examine how best to conceptualise and evaluate how decision-making in children's lives takes due account of their views, with particular attention to processes related to Part I of the Children (Scotland) Act 1995 and the implications for compliance with the UNCRC. A second volume reports on the feasibility study itself, including literature reviews on relevant research and methodology.

Summary of key provisions and mechanisms

Key provisions within the Act and related regulations and guidance, when children's views must be considered, are as follows:

• When a person is making 'any major decision' on the exercise of parental responsibilities/rights (S. 6), including the nomination of a testamentary guardian (S. 7)
• When someone with 'care or control' of the child (but not parental responsibilities/rights) is making 'any major decision' in relation to safeguarding the child's health, development and welfare and/or surgical, medical or dental treatment or procedure (S. 6)
• When courts are considering making an order in regard to parental responsibilities/rights etc. (S. 11)
• Before a local authority makes a decision with respect to a child whom they are looking after, or proposing to look after (S. 17)
• Before a local authority informs another local authority that a young person, who has a right to after-care, is proposing to live in that authority (S. 29)
• When a local authority provides or arranges for a safe refuge for a child (S. 38)
• When a court or children's hearing are involved in certain proceedings relating to children's hearings or orders in regards to child protection (S. 16)
• When a court is making, varying or discharging parental responsibilities orders (S. 16)
• The 'specified person's' actions in terms of emergency child-protection measures under S. 61
• When a court or adoption agency is considering 'any decision relating to the adoption' (S. 6 of the Adoption (Scotland) Act 1978)
• In all adoptions and freeings for adoption, a child aged 12 years or over must consent (unless the child is incapable of consenting) (S. 12 (8) and S. 18 (8) of the Adoption (Scotland) Act 1978)

Mechanisms outlined within the Act and related regulations and guidance, for ascertaining children's views, are as follows:

• A child could sue or defend proceedings in relation to any exercise of parental responsibilities and rights
• A person under the age of 16 years has the legal capacity to instruct a solicitor in any civil matter, where that person has a general understanding of what it means to do so
• Children's involvement within court proceedings for S. 11 orders (e.g. response to intimation, written affidavit, participation in child welfare hearings, third party minuter in any family action)
• Discretionary appointment of people to report on children's best interests, including their views: i.e. court reporters, curators ad litem, safe-guarders (in relation to children's hearings). A curator ad litem must be appointed in applications for parental responsibilities, adoption and freeing orders
• At certain points when making or reviewing plans for looked-after children, within regulations
• Recommendations for listening to children in child-care services, within guidance, such as: providing information; supporting children in developing views; advocacy/key workers; preparation for, arrangements and chairing of meetings
• Complaints procedures within local authorities, listening to children during service inspections
• The right of the child to attend his/her own children's hearing (S. 45); invitation to the child, subject to a children's hearing, to submit written views; exclusion of 'relevant people', their representatives and/or press from children's hearings (S. 43 and 46)

Comparisons and contrasts across the legislation, regulations and guidance

• Coverage: The principle of listening to children's views is not consistently applied in all decisions and processes
• Limited case law exists on children's views under the 1995 Act
• Which children? Different qualifications, presumptions or thresholds are applied in the weight given to children's views
• Process versus event: The legal provisions differ in their specification of procedures for ascertaining children's views
• Only child-care guidance recognises that children's views develop and change over time
• Giving notice to children of decisions made is not consistently specified
• Best interests versus views: Only a legal representative's remit is primarily to represent a child's views
• Confidentiality: Proceedings differ in the confidentiality of children's views
• The individual child, the child in the family or children as a group: Most references are made to decisions for an individual child

Further questions

What counts as a decision? Whether or not a child's views must be taken into account is dependent on what constitutes a 'major decision' (under S. 6) or a 'decision' (for looked-after children). Do matters important to children count as decisions?

Discretion: On what basis are decisions about competency and/or maturity made? Little specification is given within legislation or guidance on how such decisions are made, what contextual factors should be considered and what skills are required to do so. For instruction of a solicitor, a child must be considered to have a 'general understanding' of what it means to do so; for consent to surgical, medical or dental procedure or treatment, a child must understand the nature and possible consequences of the treatment or procedure (Age of Legal Capacity (Scotland) Act 1991 S. 2 (4)).

On involving children in decision-making: Decisions made by adults - e.g. sheriffs dispensing with intimations to children, separating parents making decisions outwith the courts, parents showing children's hearing reports to their child, the Scottish Legal Aid Board granting legal aid for a child to be legally represented - can prevent or facilitate children's views being gathered and taken into account.

Confidentiality: What is the appropriate balance between ensuring a child's views are taken into consideration, the child's welfare, and ensuring 'due process' requirements are met?

Process versus event:

• How do the particular 'events' required by legislation - e.g. a child welfare hearing, a children's panel, a court decision on adoption - impact on children's lives?
• How do time-scales help or hinder children's participation and welfare?
• What opportunity is there for review of decisions? What account should be taken of children's development over time, changes in their situations, changes in their views?
• What facilitates or prevents children from participating: i.e., what information do they need and how might they best receive it, what support do they need, what feedback on decisions should they have? What account is taken of children's differing communication styles, abilities/disabilities, backgrounds etc.?

Key Questions

• How are the legal requirements being interpreted in practice?
• How do children experience them?
• What constitutes 'good practice'? From whose perspective?

« Previous | Contents | Next »