4 Commission and Diligence
4.1.1 Commission and diligence is described in the consultation document as the procedure for recovering and preserving documents or other material for use in a court case and also covers the taking of evidence. This issue was explored in the main consultation document only, with no equivalent question asked in the young persons’ survey.
4.2 Disclosing Confidential Documents
4.2.1 Following previous consultation with stakeholders, the Scottish Government sought views on whether specific legislation should be made in relation to commission and diligence in cases under section 11 of the 1995 Act.
Q5. Should the law be changed to specify that confidential documents should only be disclosed when in the best interests of the child and after the views of the child have been taken into account?
4.2.2 Responses were split, with 41% of respondents in favour of the proposed change, 20% against such a change, and 39% who provided no response.
Reasons for Supporting the Proposed Change
4.2.3 Respondents (both individuals and organisations) generally supported the need to maintain (and formalise) the focus on the child’s best interests throughout and/or advocated that the child should have a voice and be more involved in the process. Several felt that this change would help uphold children’s rights and ensuring that due consideration is given to their best interests:
“Confidential documents should only be disclosed if it is in the best interests of the child as all decisions made in such cases should revolve around this. If a confidential document directly relates to the child then their views should be obtained to ensure trust and confidence of the child in the process.” (Individual)
4.2.4 It was felt (by both organisations and individuals) that this would provide confidence for children (and support services), both in the court system and in the level of trust children place in support workers when disclosing sensitive/personal information.
4.2.5 Respondents (typically organisations) felt it was important that confidential documents were only disclosed with the permission of the child and that these continue to be dealt with sensitively/confidentially by the courts. Consideration should also be given to the potential consequences/impact on the child of any further dissemination to the parties. Otherwise, it was felt this would undermine the support provided and a child’s trust in the service/system and could potentially lead to greater harm for the child:
“The child has to be spoken to first. Although the reporter may believe that they are doing what is in the child's best interest, the child may not agree.” (Individual)
“If a child fears the information shared in a confidential support session may be shared in court or to an abusive parent this could severely impact their experience of support and their recovery. Disclosure of confidential information to an abusive parent may also place the child in serious danger and create significant fear and anxiety.” (Domestic Abuse Support Service)
4.2.6 Children’s organisations also stressed that support must be provided to children following the disclosure of such information.
4.2.7 There was also a suggestion from children’s organisations and domestic abuse support services that sharing this type of information without a child’s consent could potentially violate a child’s rights under Articles 2, 3, 6 and 8 of the ECHR and Articles 3, 12, 16, 19 and 39 of the UNCRC.
4.2.8 All LGBT organisations supported the proposal but felt that it should be extended to ensure that no sensitive equality information, and in particular sexual orientation or gender identity information is shared without the express agreement of the child.
4.2.9 One organisation from the legal profession, while broadly in support of the change, felt that it may be difficult to implement in practice. They noted that it would be difficult for the child to know the content of the confidential document, and/or it may be inappropriate or potentially harmful to the child to disclose the full contents to the child, in which case it becomes challenging for the child to express a view regarding its disclosure to the court.
Reasons for Not Supporting the Proposed Change and/or Caveats to Support
4.2.10 Some individuals and organisations felt that the legislation should remain as it is, typically indicating that the current system works well:
“The current system generally works and information which is confidential to the child is dealt with sensitively and appropriately.” (Individual)
“The legislation already provides for weighing up the rights of the child in maintaining confidentiality.” (Local Authority)
“The court is already required to consider the child's best interests in making a decision and issues of disclosure are more properly dealt with as part of this test.” (Legal Profession)
4.2.11 Others (both individuals and organisation) felt that the Sheriff needed to have access to all the relevant information (regardless of the confidentiality of such documents) in order to make a fully informed decision. There were also suggestions (typically from individuals) that parents should have access to relevant documents which they considered may assist them with their case or may be the reason why their case would be unsuccessful. Several individuals felt it was important to also allow parties to question/dispute the content of such documents, where they felt that factual inaccuracies were provided:
“When matters reach litigation the protection of "confidentiality" of documents should be waived. The Court must have a clear understanding of the issues engaged and of the contents of all relevant documents.” (Individual)
“Anything confidential need not be discussed in open court, but the Sheriff or judge should have access to all information so that an informed and balanced decision can be reached.” (Family Support Organisation)
4.2.12 Several organisations suggested that some cases could involve a conflict between the interests of the adult(s) involved and that of the child, with some also suggesting that the proposed changes to the legislation could potentially conflict with European law and the ECHR:
“There must be a balancing exercise having regard to the child's expectation of confidentiality, the need to respect the right to family life and therefore the requirement for family members to have the documents they reasonably require to be involved in decision making (under article 8) and the requirement of a fair trial (under article 6)… The Scottish Parliament cannot pass legislation that conflicts with these fundamental rights.” (Legal Profession)
4.2.13 It was also suggested that, while the best interests of the child should be taken into account when considering the need to disclose confidential information, that it was not always sensible to take the child’s views into consideration. Several individuals and one family support organisation were concerned that the views of the child may not be impartial. Others suggested that a child may not be able to express their view, or that they may have been coerced/controlled or had their perceptions influenced by one of the parties (or a specialist support organisation):
“We agree that disclosure of confidential material should be made in the best interests of the child, but do not agree that the views of the child should necessarily be taken into account.” (Family Support Organisation)
“Children can be manipulated and adversely influenced so that what they say is neither accurate nor credible.” (Individual)
4.2.14 Similarly, one individual and one local authority felt that it was unfair/inappropriate to place the responsibility for disclosing information on the child, and suggested that child may not in a position to understand, assess and deal with confidential information. They were concerned that overriding a child’s view to withhold information would lead to diminishing trust, but that upholding a child’s view not to disclose information may have longer term implications. It was felt that people may hold the child responsible for the final outcome which they may not have anticipated due to their lack of understanding at the time.
4.2.15 It was also suggested by some organisations (and one individual) that the views of the child may not always be the same as what was in their best interests. Some discussed the importance of identifying where abuse had been perpetrated, while others highlighted the damaging effects of receiving treatment for alleged abuse where none has taken place. It was felt that such issues were important to identify and for courts to be aware of when making orders.
4.2.16 It was also felt by some organisations (and a few individuals) that the term ‘best interests of the child’ was too subjective and not well enough defined for the legislation to rely on this. Clearly defining this terminology and providing guidance around the process and decision criteria (for parties and decision makers) was considered necessary, should the change be implemented. Likewise, a few organisations suggested that those requesting the information should have to justify their reasons for the request:
“The 'best interest of the child' is an opinion and varies depending on the person or even the situation.” (Family Support Organisation)
“One way in which this may be achieved is to ensure that specifications are tightly drawn, with the applicants stating what is sought and why.” (Children’s Organisation)
4.2.17 Several organisations and individuals also felt that not enough information was provided regarding who would gather the views of the child and how this would be done. One other sector organisation suggested that it would be important to seek specialist advice, guidance and support in certain situations (e.g. where the child may have a learning disability).
4.2.18 Meanwhile, one organisation from the legal profession felt that it was important to consider imposing a general duty on the court to consider the child's welfare, and that legislating on this one specific area of procedure was not sufficient enough.