Publication - Publication

Review of Children (Scotland) Act 1995 consultation: analysis

Published: 22 May 2019
Directorate:
Legal Services (Solicitor to the Scottish Government)
Part of:
Law and order
ISBN:
9781787818163

This report provides an analysis of the consultation responses from the consultation on the Review of the Children (Scotland) Act 1995.

209 page PDF

1.1 MB

209 page PDF

1.1 MB

Contents
Review of Children (Scotland) Act 1995 consultation: analysis
Appendix B: Glossary of Terms

209 page PDF

1.1 MB

Appendix B: Glossary of Terms

The 1995 Act - The Children (Scotland) Act 1995

The 1984 Act - The Child Abduction Act 1984

The 1986 Act - The Family Law Act 1986

The 2006 Act - The Family Law (Scotland) Act 2006

The 2011 Act - The Children’s Hearings (Scotland) Act 2011

2011 Act Proceedings - The court proceedings that arise from Children’s Hearings, mainly relating to proof of grounds of referral or appeals against Children’s Hearings.

S.I. 1965/1838 - The Registration of Births, Deaths and Marriages (Scotland) Act 1965.  S.I. 1965/1838 of the Act requires an informant as defined in section 14 of the 1965 Act to sign the re-registration entry.  This excludes unmarried fathers.

Brussels IIA - Regulation 2201/2003 establishes rules on jurisdiction in matrimonial proceedings and provides for mutual recognition and enforcement of judgements from such proceedings.  It also covers jurisdiction and recognition and enforcement of orders relating to parental responsibility (including residence and contact) and provides rules on the return of children abducted to, or wrongfully retained in, other Member States.

Barnahus model - Barnahus (which literally means Children’s House) is a child-friendly, interdisciplinary and multi-agency centre for child victims and witnesses where children could be interviewed and medically examined for forensic purposes, comprehensively assessed and receive all relevant therapeutic services from appropriate professionals.  The Barnahus model was adopted in order to create a specific legal system that responds to the special needs of children about whom there is suspicion that they have been subjected to violence or abuse. It also derives from the principle that the needs of children in these cases are totally different from those of adults in the same situation.

CAFCASS - The Children and Family Court Advisory and Support Service in England and Wales.  CAFCASS’ duty is to safeguard and promote the welfare of children through the family justice system.

Capacity - Being mature enough and of sound mind to develop an understanding of the situation and potential consequences of their actions, and to form their own views and opinions on a matter.  Legal capacity is the age (typically age 12 and over) at which a child is deemed mature enough to instruct a solicitor, consent to or reject medical treatment, make a will, consent to adoption or permanence, etc.  

Child - defined in section 1(2) of the 1995 Act as a person under the age of 16 years for the purposes of Parental Responsibilities and Rights, apart from in relation to parents providing guidance where a child covers a person under the age of 18 years.

Child support worker - (sometimes referred to as a child welfare worker, children’s advocacy services or children rights officer).  In relation to this consultation, Child Support Workers could be created to advise the child about the court process, help the child provide views to the court (e.g. by sitting in on any interviews with a child welfare reporter), and outline court decisions to the child.  They would be there to support the child and explain things to the child rather than be a party to the court case.

Child Welfare Hearing - When child contact disputes reach court they are usually heard in Child Welfare Hearings, which are civil proceedings.

Child Welfare Reporter - formerly called “bar reporters”.  They are court appointed people who investigate and prepare reports on the best interests of the child.  Child Welfare Reporters are usually independent solicitors, experienced in Family Law, although social workers also prepare such reports in some areas.  

Children’s Hearing - This is a legal meeting (often just called a Hearing or a Panel), that children and young people are sometimes asked to go to with their families or carers if there are concerns about the child or young person.

Children’s Hearings System - The Children’s Hearings System deals with children and young people in Scotland under the age of eighteen who are in need of help.  The Children’s Hearings System will typically help a child or young person when they are in need of care and protection or when they have got into trouble with the police.

Children’s Reporter - (sometimes just called a ‘Reporter’).  This is the person who decides whether or not a child or young person who has been referred to the Scottish Children’s Reporter Administration should attend a Hearing.

Contact - A formal or informal agreement for a child to spend time with a non-resident parent or other family members/persons.

Curator ad litem - An officer of the court who is appointed to represent and protect the interests of a person lacking full capacity, including a child.

ECHR - European Convention on Human Rights.  An international treaty which protects human rights and fundamental freedoms in Europe.  Scottish Ministers are required to comply with the terms of the ECHR.

F9 Form - This is a form designed for a child in contact dispute cases to complete (with help from an independent adult) which allows them to tell the Sheriff in their case about their views for their future.

Family law - covers a wide range of areas including divorce and dissolution, parental responsibilities and rights, contact and permanence, and adoption cases.

GIRFEC - Getting it Right for Every Child (GIRFEC) is central to all Scottish Government policies which support children, young people and their families and is delivered through services and people who work with families. It aims to supports families by making sure children and young people can receive the right help, at the right time, from the right people, and provides a way for families to work in partnership with people who can support them, such as teachers, doctors and nurses.

Grounds of referral - This is the name given to the statement of facts that set out the reasons for a child being referred to a Children’s Hearing under the 2011 Act.

Hague Convention - The Hague Convention on the Civil Aspects of International Child Abduction provides a worldwide mechanism for the return of children abducted to, or wrongfully retained in participating countries.

Informal Domestic Relations Trials (IDRT) - These are held in Oregon as an alternative to the traditional family court hearing.  Only the judge asks questions of each party, and the use of other witnesses is limited.  The traditional rules of evidence do not apply in an IDRT and lawyers are only involved to state what the issues are, and make short arguments about the law at the end of a hearing.  Hearings are short and decisions are normally made on the same day as the hearing.

Judge - In relation to this consultation document this was the term used in the young persons’ survey in reference to a Sheriff.

Legal Aid - Publicly funded legal assistance allowing people to pursue or defend their rights, or pay for their defence, when they could not otherwise afford to do so.  When someone applies for legal aid, their application is subject to statutory tests which cover the merits of the case and the means available to the applicant.

Litigants - a person involved in a lawsuit.  The term applies to both criminal and civil cases.

LGBT - Lesbian, Gay, Bisexual and Transgender

Lord President - the most senior judge in Scotland and the head of the court judiciary.

Non-resident parent - If a child stays with both parents after parental separation, the non-resident parent is the one who spends fewer nights with the children.  If the children spend an equal number of nights with each parent, normally the non-resident parent is the one who is not getting child benefit for the children.

Mind Of My Own (MOMO) - This is an organisation who create digital participation tools (apps) to support and enable children and young people to have their voices heard and to participate in decisions about their lives. 

Parenting Management Hearings (PMH) - These have been introduced in Australia to offer an alternative to traditional court hearings as a means of resolving family law disputes between party litigants.  The scheme is proposed to be a ‘fast, informal, non-adversarial dispute resolution mechanism’.  Hearings involve the appointment of a panel of family lawyers, psychologists, social workers and child development experts to assist parents in resolving disputes relating to the care of their children.

Party litigant - An individual who appears in court action without a legal representative (such as a solicitor or advocate).  Such an individual would conduct their case by themselves, including the research and expressions of the law, procedures, forms, delays, and submissions.

Permanence - Permanence orders were introduced by the Adoption and Children (Scotland) Act 2007.  A permanence order provides a mechanism by which a Local Authority can apply to the Court to have the parental responsibilities and rights (PRRs) in respect of a child vested in the Local Authority or another person, such as kinship carers (relatives looking after a child), foster carers or prospective adopters.  In the majority of cases this involves having the PRRs removed from the child’s natural parent(s) when they are unable to satisfactorily exercise and discharge these responsibilities and rights and are likely to be unable to do so.

Principal Reporter - The Principal Reporter is an independent official within the Children’s Hearings System with powers to delegate functions to other officers in particular Children’s Reporters.

Primary legislation - Acts of Parliament.

Proof - Final stage of court proceedings at which a sheriff determines a case after hearing evidence.

PRRs - Parental Responsibilities and Rights as defined in section 1 of the 1995 Act.

Relevant Person - Someone who has the right to attend a Children’s Hearing and get information about it.  A Relevant Person can be the child or young person’s parent, grandparent, carer, guardian or the person who looks after them, but they must be deemed to be relevant by a Children’s Hearing if they are not the child or young person’s biological or adoptive mother or father.  A pre hearing panel can decide that someone should be treated as a Relevant Person because they have or recently have had, significant involvement in a child or young person’s upbringing.  This is called “deeming” someone to be a Relevant Person. Someone with deemed Relevant Person status can have this reviewed at a later date if they no longer have significant involvement with the child or young person.

Residence - Where a person lives.  In the case of child residence cases, the court will determine which parent the child will live with for the majority of the time.

Resident parent - The parent a child lives with for the majority of the time, or the parent who receives child benefit for the children (where time is split equally between both parents).

Safeguarder - An independent person appointed by a Children’s Hearing in relation to a child to prepare a report to assist the hearing to make a decision on what is in the welfare of the child.

SCJC - The Scottish Civil Justice Council prepares draft rules of procedure for the civil courts in Scotland and advises the Lord President on the development of the civil justice system in Scotland.

SCRA - The Scottish Children’s Reporter Administration is a national body focused on children and young people most at risk.  Its main responsibilities are to facilitate the work of Children’s Reporters, to deploy and manage staff to carry out that work and to provide suitable accommodation for Children’s Hearings.

SCTS - Scottish Courts and Tribunals Service.  An independent public body providing administrative support to Scottish courts and tribunals and to the judiciary.

Secondary legislation - Forms of law that are not primary legislation.  This includes statutory instruments.

Section 11 Order - An order made by either Court of Session or the Sheriff Court under section 11 of the 1995 Act in relation to parental responsibilities and rights, guardianship, the administration of a child’s property, who a child lives with or who a child should maintain personal relations and direct contact with.

Sheriff - A judge in the Sheriff Court.  Sheriffs deal with the majority of civil and criminal court cases in Scotland.  Sheriffs hear almost all family cases including divorce, child welfare, adoptions and Children’s Hearing’s cases.

Sheriffdoms - Scotland’s courts are geographically divided into six sheriffdoms for administrative purposes.

Sheriffs Principal - The Sheriffs Principal head each of Scotland’s six Sheriffdoms.  They have responsibility for ensuring the efficient disposal of court business within their area. 

SLAB - Scottish Legal Aid Board.  Manages and administers the legal aid system in Scotland.

UNCRC - The United Nations Convention on the Rights of the Child.  An international treaty which covers all aspects of a child’s life and sets out the civil, political, economic, social and cultural rights that all children are entitled to and how adults and governments must work together to make sure all children can enjoy their rights.  The Scottish Ministers have duties under the Children and Young People (Scotland) Act 2014 to keep under consideration whether there are any steps which they could take to give better or further effect to the UNCRC requirements. 


Contact

Email: family.law@gov.scot