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'Voice of the Child' Under the Children (Scotland) Act 1995: Volume 1-Mapping Paper
Chapter one: Background and introduction
1.1 This Mapping Paper has been produced as part of a feasibility study, commissioned by the Scottish Executive Justice Department, in relation to aspects of the operation of Part I of the Children (Scotland) Act 1995. The Act greatly strengthened the rights and avenues for children to have their views considered in court decisions affecting them, in line with Article 12 of the United Nations Convention on the Rights of the Child (UNCRC). Further, Section 6 of the Act directs that parents, and others exercising parental responsibilities and rights, are to have regard to the views of the child in making major decisions that will affect the child.
1.2 The Justice Department is concerned with identifying how and when the views of children are heard in the context of parental separation and/or divorce. The feasibility study is designed to explore the practical and methodological issues associated with the research, in order to inform the design of the main study.
1.3 While the central focus of the research is Part I of the Act, the Mapping Paper analyses the whole of the Act, so that the principles and practice relating to children involved in parental separation and divorce can be assessed within the broader context of decisions and processes affecting children in terms of the Act.
Introduction to the Mapping Paper
1.5 This paper identifies and explores themes and issues with regard to the extent to which the views of the child are taken into account in decisions regulated by the Children (Scotland) Act 1995, and associated Rules/Regulations and Guidance. Reference is also made to the Adoption (Scotland) Act 1978, as amended. It draws upon the appended tabular analysis (Appendix B), which sets out in summary form the relevant provisions together with some particular comments, and Appendix A, which sets out some relevant case law. This mapping paper was completed in March 2001; legal and policy decisions since that time are not included. The exception is a note in the case law Appendix, following the significant decision on children's legal representation in children's hearings.
1.6 The following table lists the Statutes, Rules, Regulations, Directions and Guidance drawn upon in making this analysis, together with any abbreviations by which they are identified within the tabular appendix:
Table 1.1 Legal and Policy Sources and Abbreviations
Name | Abbreviation |
Statutes | |
Adoption (Scotland) Act 1978 | |
Age of Legal Capacity (Scotland) Act 1991 | ALCA 1991 |
Children (Scotland) Act 1995 | The 1995 Act |
Rules | |
Children's Hearings (Scotland) Rules 1996 (1996 No. 3261 (S. 251)) | CH Rules |
Children's Hearings (Transmission of Information etc.) (Scotland) Regulations 1996 (1996 No. 3260 (S. 250)) | |
Rules of the Court of Session, 1994, as amended | RCS |
Sheriff Court, Scotland, Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993, as amended by the Sheriff Court, Scotland, Act of Sederunt (Family Proceedings in the Sheriff Court) 1996 | A.S. 93 |
Sheriff Court, Scotland, Act of Sederunt (Child Care and Maintenance Rules) 1997 | A.S. 97 |
Regulations | |
The Adoption Agencies (Scotland) Regulations 1996 (1996 No. 3266) | |
The Adoption Allowances (Scotland) Regulations 1996 (1996 N0. 3257) | |
The Arrangements to Look After Children (Scotland) Regulations 1996 (1996 No. 3262 (S. 252)) | Arrangements Regs |
The Emergency Child Protection Measures (Scotland) Regulations 1996 (1996 No. 3258 (S. 248)) | Emergency Regs |
The Fostering of Children (Scotland) Regulations 1996 (1996 No. 3263 (S. 253)) | Fostering Regs |
The Refuges for Children (Scotland) Regulations 1996 (1996 No. 3259 (S. 249)) | |
The Residential Establishments - Child Care (Scotland) Regulations 1996 (1996 No. 3256 (S. 246)) | Residential Regs |
The Secure Accommodation (Scotland) Regulations 1996 (1996 No. 3255 (S. 245)) | |
Directions | |
The Plans for Services for Children Directions 1996 | |
The Publication of Information about Services for Children Direction 1996 | |
Guidance | |
Scotland's Children - The Children (Scotland) Act 1995 Guidance; The Scottish Office Social Work Services Group, 1997: Vols. 1, 2 and 3 | Scottish Office Guidance |
1.7 The tabular analysis in Appendix B follows the sequence of the provisions of the Act. This thematic paper addresses the following questions:
Which decisions require children's views to be considered?
- In which situations does consideration have to be given to the ascertainment of the child's views?
- Which situations do not require this?
- Is there any pattern in the picture presented?
Which children are included in any such requirements?
- Are fixed ages prescribed?
- Is there a presumption at age 12?
- Is there a "gradualist" approach? If so, who makes the judgement and on what criteria is it based?
- Is there any pattern in the picture presented?
What processes are specified for ascertainment of the child's views?
- In what situations is a process prescribed?
- How do such processes compare with each other?
- Is provision made for an advocate/representative of the child?
- Is there a provision about facilitating expression of views by the child by limiting the number of people present, or by excluding specific individuals?
- Is it possible for a child's views to be kept confidential?
- Is there any pattern in the picture presented?
What weight is to be given to the child's views?
- Is a formula prescribed relating to age, maturity, understanding etc.?
- Is there any pattern in the picture presented?
Is there provision for feedback to the child about the decision and the consideration given to the child's views?
- What process is prescribed/suggested?
- Is there any pattern in the picture presented?
1.8 This paper presumes knowledge of Scottish legal terms and of Scottish legal systems. For definitions of legal terms, see Duncan 1992. For description of Scottish legal systems described here, see Cleland and Sutherland 2001.
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