Scotland) Act 1995

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Scotland) Act 1995 Scottish Women’s Rights Centre Response to the Scottish Government’s call for consultations on reforming Part 1 of the Children (Scotland) Act 1995 27/09/2018 About the Scottish Women’s Rights Centre The Scottish Women’s Rights Centre exists because of abuses of power and because a gap persists between women’s experience of violence and abuse and their access to justice. The Scottish Women’s Rights Centre is a unique collaborative project that provides free legal information, advice and representation to women affected by violence and abuse. The Centre strives to fill the gaps that exist between women’s experiences of gender-based violence and their ability to access justice by working with a specialist solicitor and an experienced advocacy worker. Informed by our direct work with victim-survivors of violence and abuse, we seek to influence national policy, research and training to improve processes and systems, and ultimately to improve the outcomes for women who have experienced gender-based violence. We welcome the opportunity to respond to this consultation. However, we wish to emphasise our view that a wholescale review of the system for adjudicating family law matters in Scotland is necessary. Legislative change should only be undertaken where necessary and for good reason, and legislative change alone is not enough. The focus on reform of the system must be to place the child at the centre. Question 1): Should the presumption that a child aged 12 or over is of sufficient age and maturity to form a view be removed from sections 11(10) and 6(1) of the 1995 Act and section 27 of the Children’s Hearings (Scotland) Act 2011? a) Yes – remove the presumption and do not replace it with a different presumption. b) Yes –remove the presumption and replace with a new presumption based on a different age. c) No – leave the presumption in. Why did you select your answer above? (Neither yes or no) Presumption This is a complex issue which does not allow for a straightforward answer. It is crucial that children who are capable of forming their own views are able to express them in proceedings relating to them, and that their views are given due weight in accordance with their age and maturity. This should be assessed on a case by case basis in an appropriate manner. We understand there are concerns that this presumption is often interpreted in civil court proceedings to mean that children under 12 do not have sufficient age and maturity to freely form a view. As a result, many children who are capable of expressing their views are potentially being denied their opportunity to realise this right in Scotland. Certainly from what we hear the approach to taking children’s views is not consistent throughout Scotland. If this presumption is indeed acting in a manner which is restricting or preventing views of children being taken, it would not be consistent with Article 12 of the UN Convention on the Rights of the Child. This may be something that can be rectified by guidance and training to provide clarity that the meaning of the presumption is that children aged 12 and over are presumed to be able to give their views, and for that to be prevented the presumption requires to be rebutted, and does not mean that children under 12 are presumed not to be capable of giving their views. Alternatively, the presumption could be amended to a younger age (although that should still not result in a rule that is rigidly applied). It is outwith our expertise to comment on what an appropriate age would be. Alternatively, if removal of the presumption is deemed more appropriate, it must not result in a more restrictive position than the current one. The government must take steps to ensure that the position for children in Scotland is compliant with Article 12 and in keeping with the General Comment on Article 12.1 Article 12 applies to every child without discrimination. Rather than starting with the assumption that a child is incapable of expressing her or his own views, the state should assume that a child has the capacity to form her or his own views and recognise that she or her has the right to express them2. Accordingly, the presumption must not be applied in a manner which results in children under the age of 12 being considered to lack the capacity to give views. No matter what the decision regarding the presumption, guidance and training are essential to ensure consideration is given to whether any child is capable of giving views in any judicial or administrative process in relation to the child, with relevant factors being taken into consideration. The General Comment prescribes that the onus does not fall on children to prove their capacity, rather with the State to assess the capacity of the child 3. However, those assessing the capacity of children to form and give their views require to have appropriate knowledge and understanding to enable them to do so properly. We would suggest that a test of practicability is not appropriate in relation to seeking a child’s views, as this may allow for factors to be taken into consideration beyond the age, maturity and capacity of the child. Further work is needed to ensure that our systems are enabling children under 12 to realise their rights to participate in judicial processes. The General Comment on Article 12 recommends training on Article 12 for all professionals working with and for children4 including lawyers, judges, police, social workers, community workers, psychologists, caregivers, teachers, medical professionals, civil servants and public officials. Information must be provided to children on their right to participate along with where to seek support to enact this right. Expressing views is a choice for the child, not an obligation. Further, the child should be supplied with sufficient information and support to enable them to give their views in a meaningful way. This will be discussed further in our answer to Question 2 below. 1 http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf 3 Para 20, General Comment Article 12 4 Para 49, General Comment Article 12 Children experiencing/at risk of abuse Further consideration must be given to children who have experienced abuse, including domestic and sexual abuse. The impact of fear and trauma can create additional barriers to children who may consider it unsafe to express their views. Instead of a reason why they can’t express their views this should be treated as a qualification for additional and specialist support. “My son did not have sufficient speech because of his autism to be formally interviewed, but told us at home how he felt- again the court, curator & social work ignored his opinion” Since “the greater the impact of the outcome on the life of the child, the more relevant the appropriate assessment of the maturity of that child5” the potential negative consequences of denying children who have been victims of violence or abuse the right to express their views cannot be understated. Children experiencing or at risk of abuse must be given sufficient support to safely make their views known to the court, including any allegations of abuse or concerns and fear about the impact of ongoing contact. When children express fear this should be taken very seriously as this can be an important indicator of risk to the child. Safety of children is one of the reasons they should be better supported to make their views known. The children involved in Power Up Power Down highlighted the importance of taking seriously the fear of children, and they questioned why adults involved in the court system did not think the children’s fear was a significant factor in decision making. “Please listen to the children they have the right not to live in fear anymore by courts automatically putting contact orders in place which leaves them exposed to abusive parents” Due weight and consideration In addition to further provision for children to make their views known, significant assessment is needed in relation to the due weight currently given to these views. Article 12 stipulates that simply listening to the child is insufficient, the views of the child have to be seriously considered6. Additionally, further legislative measures may be required for decision makers to explain the extent of the consideration given to the views of the child and the consequences “They were all terrified of him and did not want to see him. My daughters told this to the sheriff in her chambers, but she dismissed their views. They told social work & the curator also, but they did not listen. My daughters' Guidance teacher (at secondary school) was the only professional who listened.” 5 Para 30, General Comment Article 12 6 Para 28, General Comment Article 12 for the child7. This could lead to greater clarity and consistency in courts’ approach to taking views of children. Children and young people’s Article 12 rights are closely linked to their right to freedom of expression (Article 13) and right to access to information (Article 17) which are crucial prerequisites for the effective exercise of the right to be heard. Given than many cases involve more than one child, it is important that siblings are given the opportunity to provide their views separately and be individually supported to do so. Due weight should be given to each sibling’s views. Question 2): How can we best ensure children’s views are heard in court cases? e) Another way – A range of options should be provided including Child Support Workers, speaking directly to the judge or sheriff (if desired) and other options to provide written or recorded views.
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