Scotland's Children Children (Scotland) Act 1995 Implementation Newsletter No 3

A New Philosophy

On 22 August, the Commencement Order to bring Part I fully into force was signed by Lord James Douglas-Hamilton and the new legislation will take effect from 1 November.

Part I contains those sections of the Act that are related to family matters. According to Kenneth Norrie, Professor of Law at the University of Strathclyde, Part I ‘contains in many respects the most fundamental alterations to the law as it previously stood.’

The changes brought about by the Act are based on a new way of thinking about the relationship in law between parents and children. ‘The whole ethos of Part I is to move away from the common understanding that parents have a right to keep and to control their children,’ says Professor Norrie, ‘and towards an understanding that mothers and some fathers have a responsibility to protect and guide their children and to maintain contact with them.’

This one principle - that parents have responsibilities towards their children rather than rights over them, and will continue to do so even if their own relationship as adults has broken down - guides the whole of Part I, and all of its provisions stem from this principle. The integrated nature of the legislation means that it will have meaning for every parent and child in Scotland, as well as for those in the legal profession who have a role to play in making decisions about family matters.

Alison Cleland, solicitor with Mowat, Dean & Co in Edinburgh, member of the Law Society's Law Reform Committee and former member of the Family Law Committee, agrees. 'The clear statement of parental responsibilities will help us move away from the outdated notion of rights "over" children to recognition that they are people in their own right,' she said.

In relation to the new court rules which follow from the provisions of Part I, Ms Cleland comments: 'It is very important that the courts will have a duty to hear young people's views in family cases - the challenge is for solicitors to provide the best possible service for their young clients.'

This issue of the Implementation Newsletter examines and explains the provisions of Part I. It outline the implications for parents, children, legal professionals and local authorities of the new philosophy of family law in Scotland introduced by the Children (Scotland) Act 1995.