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Scotland's Children
Children (Scotland) Act 1995
Implementation Newsletter No 3
 
Listening to Children in Court
The Children (Scotland) Act 1995 and the new Sheriff Court Rules
Introducing the new court rules...Amendments to the Sheriff Court Ordinary Cause Rules (see Implementation Newsletter No. 1, June 1996), resulting from the Sheriff Court Rules Council’s considerations of the provisions of Part I of the Children (Scotland) Act 1995, were made on 15 August 1996 and approved by the Court of Session.
The new rules are contained in the Act of Sederunt (Family Proceedings in the Sheriff Court) 1996 which comes into force on 1 November 1996. The provisions take account of the responses received to the consultation paper issued in November last year.
 
'The Sheriff Court Rules Council decided at the outset of its consideration of the provisions of Part I of the Children (Scotland) Act 1995 that it was important that procedural rules should support the policy and intention behind the provisions and take account of the new responsibilities placed on parents.

In addition, the Council recognised that the non-interventionist rule placed upon courts in Section 11(7)(a) of the Act underpinned the principles in Section 1 and 2 placing on parents a continuing responsibility for their children’s welfare, to be disturbed only when necessary. In pursuance of this, the Council decided to provide for an early hearing in family actions at which the parents could seek resolution of disputed issues as a priority (the Child Welfare Hearing) and at which the court could consider whether and to what extent it should intervene.

Other changes which are intended to support the provisions in Part I of the 1995 Act include a new form of intimation to be sent to children, and new procedures whereby the views of a child shall be recorded and may be kept confidential.

In early course of their consideration of the provisions in Part I, the Rules Council decided that there would be merit in consulting on propositions for rules changes. A consultation paper was prepared and issued by the Council in November 1995 inviting responses by 29 February 1996. Thirty-one responses were received, most of high quality, which greatly assisted the formulation of the Council’s proposals for amending the court rules.

The Rules Council, having arrived at what they consider to be appropriate solutions in light of the responses received, commend them to all who have to work with them. The Council have every confidence that those participating in court proceedings affecting children will endeavour to ensure that the new procedures operate in the spirit intended and that where the court is called upon to adjudicate on cases affecting children, all concerned will seek to resolve the issues as quickly as possible.'

Sheriff Principal J J Maguire, QC
Chairman of the Sheriff Court Rules Council
 
The changes
The main changes introduced by the Act of Sederunt are:
  • the introduction of a new hearing in family actions to be known as the Child Welfare Hearing;
  • a new way of letting children know (‘intimation’) when any order in terms of Section 11 of the Children (Scotland) Act 1995 is sought by a party to an action; and
  • procedures for enabling a child to decide whether to express a view on a matter affecting him or her, and for recording any views so expressed.
Child welfare hearing
What is the purpose of the Child Welfare Hearing?
This new hearing has been introduced to seek to resolve disputed matters affecting children at an early stage of court proceedings.
It is anticipated that Sheriffs will seek more information from parties and their solicitors than at present; this is likely to be a consequence of one of the over-riding principles provided in Section 11 of the Children (Scotland) Act 1995, namely, the court cannot make an order in respect of a child unless persuaded that to do so is better for the child than making no order at all. The child’s welfare will be the court’s paramount consideration.
The hearing may be held in private. This will be a matter for the Sheriff to decide, having regard to the circumstances of each case.
Must parties attend?
Yes, unless the Sheriff excuses their attendance where good reasons for not attending have been offered. Any child who has indicated a wish to attend should do so.
What will happen at the child welfare hearing?
The Sheriff will ascertain from parties, or their solicitors if they are to be represented, what matters are in dispute in relation to the child. Parties will have to be prepared to provide the Sheriff with information relating to the disputed matters. Where the child attends the hearing, the Sheriff may wish to give him/her an opportunity to provide any views he/she has as matters proceed.
The Sheriff will decide what steps to take to resolve the dispute. If matters cannot be resolved at this stage, the Sheriff will decide what other procedural steps, if any, to order.
When will a hearing be fixed?
A hearing may be fixed in any circumstances in a family action if the Sheriff deems it necessary. However, there are certain circumstances under which a hearing must be fixed:
  • where a party to an action lodges a notice of intention to defend in that action indicating
  • a wish to oppose a section 11 order or seek the same order sought by the other party to the action (pursuer);
  • he/she seeks a different order to that sought by the pursuer.
Once the notice to defend has been lodged, the Sheriff Clerk will fix a suitable date and time.
Do parties have to wait until the child welfare hearing to get an order in relation to a child?
No. The court, as at present, will still entertain applications for interim orders where the particular circumstances of the case warrant this approach.