Review of Children (Scotland) Act 1995 consultation: analysis
This report provides an analysis of the consultation responses from the consultation on the Review of the Children (Scotland) Act 1995.
5.1.1 Both the main consultation and the young persons’ survey sought views in relation to the contact a child should have with family members. Young people were asked to identify and discuss who a child should be allowed to keep in contact with, while respondents to the main consultation were asked to consider a wider range of issues, including:
- Whether contact centres should be regulated;
- What steps should be taken to help ensure children continue to have relationships with family members, other than their parents, who are important to them;
- Whether there should be a presumption in law that children benefit from contact with their grandparents;
- Whether the 1995 Act should be clarified to make it clear that siblings, including those aged under 16, can apply for contact without being granted PRRs;
- What would strengthen the existing guidance to help a looked after child to keep in touch with other children they have shared family life with; and
- What can be done to ensure contact orders are enforced.
5.2 Regulating Child Contact Centres
5.2.1 The consultation document highlighted that contact centres can play an essential role in helping children to maintain relationships with the parent they no longer live with or with other family members. It also set out the areas where contact centres could be regulated, detailed the pros and cons of such regulation, and asked respondents to consider whether contact centres should be regulated or not.
Q6. Should Child Contact Centres be regulated?
5.2.2 Two thirds (66%) of respondents agreed that contact centres should be regulated, while only 6% said they should not. The remaining 28% did not give a response.
5.2.3 Those who indicated that contact centres should be regulated commonly felt that this was required to provide and maintain minimum/consistent standards across the country, and to ensure the safety of children. Some respondents (both individuals and organisations) suggested that the quality of contact centres varied across the country, indeed, some individuals recounted negative experiences while others discussed positive and supportive experiences:
“Essential to ensure that such a fundamental plank of child contact is not left to ad hoc provision around the country.” (Individual)
5.2.4 In addition, some respondents suggested that all childcare settings (which contact centres were considered to be) should be subject to regulation. Others highlighted that child contact centres often support vulnerable children and so, again, regulation was seen as necessary:
“Contact centres are regularly required to handle challenging situations and work with vulnerable children, and so it would seem appropriate to subject them to some form of regulation.” (Legal Profession)
5.2.5 The current qualifications and training of staff was questioned, with respondents (both individuals and organisations) listing a range of training they considered contact centre staff should have. This included training on children’s rights, domestic abuse, parental alienation, trauma, attachment and child protection.
5.2.6 Both individuals and organisations also thought that contact centres should be funded by the government, and while some hoped that the introduction of regulation would bring adequate and secure funding, others felt that regulation would only be feasible if funding was put in place. It was suggested that this would be necessary to allow contact centres to provide a consistent level of service and the required staff training, and to meet the requirements of the regulation:
“Regulation of contact centres cannot happen in isolation and will require appropriate funding and investment.” (Other Organisation)
5.2.7 Several felt that there was a greater need to record information regarding contact that took place within centres, both for child protection purposes and as feedback to the court. Again, however, respondents stressed the need for staff to be trained in such reporting responsibilities.
5.2.8 Many respondents (again both individuals and organisations) showed concern over the potential closure of contact centres following regulation, and were keen that regulation was used to improve standards rather than to reduce provision. Others (typically organisations), however, thought it appropriate that any centre that was unable to meet the minimum standards should close.
5.2.9 A few organisations also suggested that the purpose of contact centres should be restated and reinforced as a result of regulation. This was welcomed as it was felt that contact centres were sometimes used inappropriately to facilitate unsuitable/unsafe contact and/or where contact was not in the child’s best interests.
5.2.10 Those who felt that contact centres should not be regulated generally felt that they already operated well, with some suggesting that increased regulation/statutory oversight was not necessary or appropriate for family relationship settings. Some were also concerned about the risk of contact centre closures and the cost implications related to regulation.
5.2.11 A few respondents (generally from those who gave no response to the closed question) felt that additional consultation with service users and providers would be required. Detailed costings and greater clarity around what would be regulated and inspected was considered to be required before introducing such regulation.
5.3 Who a Child Should be Allowed to Keep in Contact With
5.3.1 The young persons’ survey asked respondents who they considered it was important for a child to keep in contact with generally.
YP2. Who do you think it is important for a child to keep in contact with?
|Brothers/sisters (including step brothers/sisters and half-brothers/sisters)||182||62%|
* Note: Multiple responses were possible at this question.
5.3.2 Young people generally felt it was important to keep in contact with a range of people, with most survey respondents selecting multiple responses from the options provided. Both parents, brothers and sisters, grandparents and aunts/uncles were all identified as important by around/over half of the respondents.
5.3.3 Two thirds (67%) of young people felt that it was important to stay in contact with both parents compared to 12% who indicated that it was important to stay in contact with only one parent. However, 20 of the 35 respondents who selected one parent also selected both parents, therefore only 15 (5%) respondents truly favoured contact with one parent alone.
5.3.4 For those who selected one parent and not both parents, they typically reported that either they were part of a lone parent family and this was fine, or they felt that sometimes one parent can be unkind/abusive. It was suggested that children should not be made to see both parents where they did not want to, or it was considered unsafe:
“If the other parent is abusive then a child/young person should not be forced to see them.” (Young Person, Age 17-18)
“My mum is a single parent and she does fine.” (Young Person, Age 17-18)
5.3.5 When outlining the reasons for their responses (to the closed question), many indicated that they felt it was important to keep in contact with all family members. Respondents often felt that knowing a range of family members was important for a child’s development, and/or that it was important to ensure that a child received support during difficult periods in their lives (such as parental break-ups):
“All family members are important and give you a sense of belonging and who you are.” (Young Person, Age 13-16)
“It's important for a child to have an extensive network of family in order to help them develop and mature.” (Young Person, Age 13-16)
5.3.6 Others felt that all options listed were important or that there should be no prescribed list for children to have contact with as suitability will vary by case:
“It depends on who is reliable, consistent, attuned and cares for the right reasons. It can be all or none of the above, it is not an entitlement based on title.” (Young Person, Age Undisclosed)
5.3.7 Some suggested that the child should have the choice regarding who they keep in touch with, often indicating that they should be allowed to keep in touch with anyone they want to. Others, however, caveated this with a need for the relationships to be positive or for the child to be safe:
“A child should have the right to see anyone that makes them happy.” (Young Person, Age 13-16)
“All family members who do not pose a risk to the child.” (Young Person, Age Undisclosed)
5.3.8 There was a strong sense across the responses that young people felt it was important for a child to have a choice in who they were in contact with, with some highlighting that a child should not be forced to have contact with someone they do not want to have contact with:
“If the other parent is abusive then a child/young person should not be forced to see them. (Young Person, Age 17-18)
“It very much depends on circumstance. If possible and appropriate, then it is important to have contact with everybody, however, if the child is uncomfortable with it then they should under no circumstances be forced to.” (Young Person, Age 13-16)
5.3.9 Other people (not listed in the options provided) that were suggested as being important for children to keep in contact with included friends, cousins and, in one case, a youth worker (should a child feel this was what they wanted).
5.4 Supporting Children to Maintain Important Relationships
5.4.1 The main consultation document stated that, “when parents of a child split up or where children are cared for outwith the family home, children should be able to grow up with or continue to have relationships with family members, other than the parents themselves, who are important to them”. In line with this goal, respondents were asked to consider what steps should be taken to ensure children have relationships with other family members.
Q7. What steps should be taken to help ensure children continue to have relationships with family members, other than their parents, who are important to them?
5.4.2 No quantitative element was included for this question, rather, respondents provided purely free text answers.
5.4.3 Respondents largely discussed continuing contact with grandparents and siblings (including half, step and foster siblings), but other family members mentioned included aunts/uncles, cousins, former step-parents, foster carers, and close family friends.
5.4.4 Most respondents felt that maintaining or developing relationships between children and other family members was highly important. It was suggested that grandparents in particular can provide childcare and/or have regular contact and close bonds, which can be detrimental to the child if contact is stopped suddenly. The distress caused to the other family members denied contact with a child was also detailed by some:
“Courts should enforce the rights of the child to have meaningful contact with both sides of their family, including grandparents, aunts, uncles, cousins, etc.” (Individual)
The Child’s Views and Best Interests should be Paramount
5.4.5 Several respondents stressed that having a relationship with other family members needed to be the child’s choice and only supported/encouraged where there was no harm to the child and/or it was in the best interests of the child. Respondents clarified that no contact should be allowed (or that safeguards be put in place) where there is a risk to the child (or the main caregiver) or where there is a history of abuse or alienation. A few organisations suggested that a risk assessment (covering domestic abuse and coercive control) should be undertaken before any decisions are made:
“Children have a right to continued contact with members of their family, if it is safe and in their best interests to do so and giving due weight to their views.” (Children’s Organisation)
Need for a Legal Presumption
5.4.6 Some (typically individuals) felt that the default position should be that contact with other family members should be allowed (where this is not detrimental to the child). Indeed, some felt a legal presumption was needed in this respect. A few (both individuals and organisations) noted current laws in other EU countries (such as France and Spain) and felt there was scope for Scots law to be brought in line with this. The 2006 Charter for Grandchildren was also referenced by a few respondents (again, both individuals and organisations) as providing a useful/desirable basis for the development of legal rights. Organisations also cited the right to family life as outlined in the Human Rights Act 1998, as well as Articles 5, 8 and 9 of the UNCRC.
5.4.7 It was also stressed by some respondents that not all family conflict and difficulty in maintaining contact with children happens as a result of parental separation. As such, it was considered important that the law supports contact between family members at any time/in any circumstances, and is not restricted to marriage or relationship break-ups.
5.4.8 Some, however, were against legal presumptions based on the status of specific relationships as it was felt that each child’s circumstances will be different. It was felt this could risk undermining the paramountcy principle.
Support from the Courts
5.4.9 Many organisations and individuals felt that greater consideration of contact with other family members was required, both in general and by the court as a matter of course in parental contact cases, without requiring a separate action. The cost and stress involved in undertaking a separate court action for contact was considered to be a barrier for many (particularly elderly relatives/grandparents).
5.4.10 Respondents regularly suggested that the child should be involved in identifying those individuals that are important to them and allowed to express whether they wish to maintain these relationships. Indeed, some suggested that wider family relationships should be actively considered in such a way when developing a child’s plan and/or when preparing court reports (such as child welfare reports). It was also suggested that other relatives should be permitted to submit statements to the court during proceedings (again without the need for a separate action).
5.4.11 With specific reference to contact with siblings, a number of organisations felt it was important to clarify Section 11 of the 1995 Act. It needed to be clearer that court orders under that section may relate to sibling contact and that siblings, including those under the age of 16, can apply for contact.
5.4.12 A few individuals felt that grandparents and other relatives should be able to apply to the courts for contact, although others highlighted that this provision was already in place.
Increased Contact with Non-Resident Parent
5.4.13 Many individuals suggested that granting the child greater time to spend with the non-resident parent (often citing a presumption of 50/50 residency) could lead to meaningful relationships being maintained with other family members across both the maternal and paternal sides. They noted that, where a non-resident parent is only granted limited contact with a child (e.g. one afternoon a week) there was very little time to facilitate visits to other family members. A few also noted that contact orders only covered the non-resident parent and did not extend to other relatives, therefore a non-resident parent cannot arrange for the child to spend time with other family members without them being present (although there is no such requirement on the resident parent):
“The priority needs to be to ensure that the ‘non-resident’ parent is able to enjoy reasonable, meaningful contact. Then in most cases, contact with the other members of the family would naturally follow.” (Individual)
Support for Care Experienced Young People to Maintain Relationships
5.4.14 Several individuals and organisations also felt that it was important for care experienced young people to be facilitated and supported (by the state) to maintain relationships with family members. It was also suggested that family should be understood in its broadest sense, thus allowing them to maintain contact with previous carers and other children who they shared a care placement with. One children’s organisation considered particular need to reform the system to facilitate greater contact between siblings in care, or preferably, staying together in care.
5.4.15 It was also suggested by two other children’s organisations that, while there was an appreciation of high workloads and staffing issues for social workers, they felt this should not be used as an excuse for not supporting or facilitating contact for young people in care. Indeed, it was felt that social workers, those managing residential houses, and foster carers should prioritise contact for those in care.
5.4.16 Other suggestions that were made by a few respondents included using mediation, contact centres and Family Group Decision Making approaches to help children maintain relationships with other family members. The provision of education/public health materials to highlight the detrimental impacts of family conflict over child contact and encouraging conciliatory approaches to resolve matters was also cited. One suggested that greater advertising and awareness raising of the current options available to grandparents and other family members was needed.
5.4.17 Several respondents also noted that views, situations and relationships can change over time and so there should be the opportunity to revisit and amend the arrangements (or to seek arrangements) at a later date.
5.4.18 There were also calls for greater training and awareness of alienation, and consequences/punishments implemented for those who perpetuate this (including both parents and extended family members). Similarly, it was felt that consequences were required where one party is obstructive in proceedings or fails to comply with a court order:
“Unless there is a penalty, children will still unfairly be separated from their family members.” (Individual)
No Changes Required
5.4.19 Some respondents felt that there should be no change to the current system, however. It was indicated that any person who claims an interest in the child could apply to the courts for contact with a child under section 11, and therefore provision already exists for other family members. Others suggested that this was more of a social issue and not something to legislate for. They felt that it should be left to the discretion of the parents/families, and were concerned that legal intervention may result in greater family discord and distress for the child.
5.5 Contact with Grandparents
5.5.1 The young persons’ survey asked whether a child should have contact with their grandparents, while the main consultation asked whether there should be a presumption in law that children benefit from contact with their grandparents.
Young Peoples’ Views
YP5. Should a child have contact with their grandparents?
|Yes, but only if it good for the child||151||51%|
5.5.2 Most respondents to the young peoples’ survey felt that children should have contact with their grandparents, however, a greater proportion (51%) indicated that this should only be allowed where it was good for the child. Only 4 people said ‘no’ to this question.
5.5.3 Those who indicated that contact with grandparents should always be allowed felt that this was an important family relationship to maintain. Grandparents could provide support and impart knowledge, and should not be excluded from a child’s life when they have had no input to the parents’ break-up. It was also perceived that grandparents always love their grandchildren, have their best interest at heart, and that it is important to support alternative family structures:
“Because they are wise and full of wisdom and always has the child’s best interest at heart.” (Young Person, Age 13-16)
“Grandparents usually come from a time when things were different and it's important to have various ways of living within families. Grandparents can learn a lot from their grandchildren and vice versa.” (Young Person, Age 19-25)
5.5.4 Those who felt contact should only be allowed where it would be good for the child suggested that not all grandparents would be a good influence on the child, and that there could be risks where there is a history of violence, abuse, or drug addiction:
“Grandparents can be important caregivers. Even if not, extended family bonds are important. But they shouldn't be allowed around a child if they are perpetrating/compounding abuse or manipulation or if the child dreads seeing them.” (Young Person, Age 19-25)
5.5.5 Again, the young people stressed the importance of the child’s voice, suggesting that contact should be facilitated only where the child wants it:
“…it should be a child’s choice not a parent’s.” (Young Person, Age Undisclosed)
“This should be the child's decision and they shouldn’t be forced by adults.” (Young Person, Age 13-16)
Legal Presumption that Children Benefit from Contact with Grandparents
5.5.6 The main consultation document acknowledged the important role that grandparents often play in children’s lives. It also indicated that grandparents can already make an application to the court to seek contact with their grandchild via section 11 of the 1995 Act. The Charter for Grandchildren (introduced in 2006) was also outlined, which aims to highlight the role of the wider family and explains that grandchildren can expect to know and maintain contact with their family, except in very exceptional circumstances.
5.5.7 The main consultation document sought to explore views on whether there should be a presumption in section 11 of the 1995 Act that children should have contact with their grandparents, with the courts’ starting position being a presumption that children benefit from contact with their grandparents.
Q8. Should there be a presumption in law that children benefit from contact with their grandparents?
5.5.8 Responses were split between those who thought such a presumption should be made in law (45%) and those who thought it should not (40%). However, most of those who thought there should be a presumption in law were individuals (102 individuals compared to just 12 organisations, largely consisting of family support organisations and local authorities). Those who felt there should not be a presumption were more evenly split between organisations and individuals (47 and 54 respectively).
Support for a Presumption in Favour of Contact with Grandparents
5.5.9 Most of the individuals who were in favour of such a presumption stressed the importance of, and positive impact that a grandchild/grandparent relationship can have. It was felt that grandparents often spend a lot of time with their grandchildren, often providing childcare. Grandparents were considered an important source of support, in forming a child’s identity, understanding their history/where they come from, providing a sense of belonging, and imparting knowledge/wisdom/experience to the child. Therefore, it was considered sensible to make a presumption that contact would benefit the child and make it easier for grandparents to stay involved with their grandchildren:
“Grandparents provide love, stability and continuity to children, generally.” (Individual)
5.5.10 A few family support organisations also noted that, having a presumption did not mean that grandparents were seeking/would be granted PRRs, rather it would assist in maintaining contact/important relationships.
5.5.11 It was also suggested (both by individuals and a few organisations) that acrimonious separations of the child’s parents often impacted on grandparents (and other members of the family). It was felt that bad feeling/disputes between the parents often meant that the child was deprived of contact with grandparents/one side of their family, which was not considered to be in the best interests of the child:
“When a child is alienated from a parent, this is also likely to include the parent’s family as well. This denies the child access to half their family. This is not in the best interests of a child.” (Individual)
“Even if relationships with parents have broken down grandparents shouldn’t be punished.” (Individual)
5.5.12 Some (again, both individuals and organisations) felt that there should be a presumption for grandparents to have contact. It was felt that this should be the starting point, and the onus needed to be on showing contact was not beneficial/in the child’s best interest rather than grandparents having to go to court to show it is in the child’s best interests.
No Presumption in Favour of Contact with Grandparents
5.5.13 Most individuals and organisations who felt that there should not be a presumption in favour of contact with grandparents suggested that all situations/cases are different and should be assessed on individual merits. While many grandparents would be a positive influence for a child it was highlighted that some would not, i.e. they may have been abusive, may facilitate contact with other abusive family members/those with no contact rights, or perpetuate the alienation of others. As such, it would be wrong to make assumptions on relationships. Several individuals who supported the introduction of a presumption also caveated that contact should not be facilitated where there was any such risk to the child:
“Grandparents are a diverse group, ranging from supportive quasi-parents to virtual strangers, with some enhancing the family dynamic and others bringing disharmony… It would be a mistake to make any assumptions about particular relationships.” (Individual)
“It is not true that children benefit from contact with all of their grandparents in every case, and to introduce a legal presumption to this effect would not be in the best interests of the child.” (Family Support Organisation)
5.5.14 It was also suggested (again by both individuals and organisations) that the primary consideration in each case needed to remain the welfare of the child, and that providing such an assumption may risk overshadowing this with the rights of adults. Several organisations also felt that it was important for the child’s view to be sought, both in terms of the relationships that are important to them and what would be in their best interests:
“The primary consideration is the welfare of the child… A presumption in favour of contact risks shifting the focus from the child to the adult.” (Individual)
“The focus on the child and the paramountcy of their best interests, along with taking account of their views should be maintained without the introduction of any legal presumptions.” (Legal Profession)
5.5.15 A few felt that the rights of the parents (including both parents and the resident parent) should also be prioritised over grandparents. It was suggested that, in some situations at least, where parents (either separated or together) refuse to allow a grandparent contact with the child there may be good reason for this (again a history of abuse, controlling behaviour, etc.), and it was important not to impose contact in such circumstances. One individual also felt that requiring resident parents to facilitate contact with grandparents may be challenging, both practically and emotionally. Another respondent suggested that, where parents are together, such a presumption could potentially impact family decisions, such as moving house, when this would impact on a grandparent’s ability to see their grandchild.
5.5.16 It was suggested by a few respondents that a broader presumption related to wider family members may be more suitable. This would incorporate grandparents, without being specific to them and placing their relationship with the child ahead of others. Several respondents who were in favour of a presumption for grandparents also suggested that children often benefited from contact with other family members, and felt this should not be overlooked.
5.5.17 As above, several individuals and many organisations felt that no presumption was required as the current court system already recognised grandparents (and wider family members) and makes provision for contact where this is determined to be in the best interests of the child.
5.5.18 A few respondents suggested that consideration was needed of the potential impacts any such change may have for care experienced young people, parents with learning disabilities, and on the Children’s Hearing system.
5.6 Contact with Siblings
5.6.1 The young persons’ survey asked whether children should be allowed to keep in contact with their brothers and sisters, while the main consultation document explored whether the 1995 Act should be clarified to make it clear that siblings, including those aged under 16, can apply for contact without being granted PRRs in order to support sibling contact.
Young Peoples’ Views
YP3. Should a child be allowed to keep in contact with their brothers and sisters?
|Yes, but only if it good for the child||131||44%|
5.6.2 Most respondents felt that it was important for a child to be allowed to keep in contact with their brothers and sisters, although opinions were split as to whether this should always be allowed (31% of respondents) or only when it is considered to be good for the child (44% of respondents). Nobody answered ‘no’ to this question.
5.6.3 As with grandparent relationships, young people generally felt that sibling relationships were important, that there was often a close bond that should be maintained, and that having contact with siblings can help provide support and a sense of belonging. Some also suggested that siblings can provide someone that a child can look up to, while a few felt that children should not be separated just because the adults could not agree:
“Sibling relationships are important and it often helps if a child has someone they can relate to during a difficult time that they share an experience with.” (Young Person, Age 17-18)
“Because they need to have someone to look up to.” (Young Person, Age 8-12)
“The siblings haven't done anything wrong and shouldn’t be taken out of the child’s life.” (Young Person, Age 13-16)
5.6.4 Those who caveated support for contact (i.e. only where this would be in good for the child) typically felt that contact should either not be facilitated or should be limited/closely supervised where instances of abuse, bullying or violence were prevalent. It was also suggested that, where a sibling was considered a ‘bad influence’ or where siblings fight, contact may not be in the best interests of the child. Respondents often felt that contact should be allowed where it was considered to be in the best interests of the child or where it would have a benefit or positive outcome for the child:
“I would say always but if their siblings are abusive to them then no.” (Young Person, Age 13-16)
“Because some siblings do not like each other and might fight a lot.” (Young Person, Age 8-12)
“The child’s interests should be put first.” (Young Person, Age 13-16)
5.6.5 One respondent however, highlighted that, even where the sibling may not be considered a good influence on the child, the child may provide a good influence on their sibling, and therefore the relationship was still important:
“I had to legally fight for this [contact] with my sibling and I was a positive influence to my sibling, and now one of the only constant people who has been in her life.” (Young Person, Age Undisclosed)
5.6.6 Again, the sense of giving the child a choice was important to young people.
Applying for Contact without Being Granted PRRs
5.6.7 The main consultation document discussed the importance of sibling relationships, covering all variations, such as full sibling, half sibling, step sibling by means of marriage or civil partnership, sibling through adoption, and any other person the child regards as their sibling and with whom they have an established family life.
5.6.8 While it is possible for a person to have contact with a sibling by seeking an order from a court, in practice, there has been confusion over whether a court can make an order to grant a person contact with a child without giving that person PRRs. As such, the main consultation document sought views on whether to amend section 11 of the 1995 Act to make it clear that a person under the age of 16 may apply for contact with a sibling without being granted PRRs.
Q9. Should the 1995 Act be clarified to make it clear that siblings, including those aged under 16, can apply for contact without being granted PRRs?
5.6.9 Two thirds (67%) of respondents agreed that the 1995 Act should be clarified in this way, compared to only 7% who disagreed with such a change. The remaining 26% gave no response. Both organisations and individuals were generally more in favour of the change, with 54 organisations and 115 individuals supporting this suggestion, compared to just four organisations and 14 individuals who were unsupportive.
Reasons for Support
5.6.10 Many individuals and organisations again suggested that it was important and beneficial for a child to build/maintain relationships with siblings/family members, and that children had a right to these relationships. Several considered this particularly important where relationships have already been established, and in the case of care experienced young people:
“Sibling contact should be promoted where it is in the child/ren’s best interests as these are lifelong relationships for each child that promote a sense of belonging and inclusion.” (Individual)
“Contact with siblings can be particularly supportive when children have experienced shared trauma and adversity. A sibling may be the only support who truly knows what the other has experienced.” (Family Support Organisation)
5.6.11 Individuals also considered it important for the child’s views to be heard and for contact (or non-contact) to be the child’s choice. Ensuring that the decision has not been controlled/influenced by an adult was key (whether that be a parent or the local authority in the case of adoption and children in care). Organisations similarly felt that it was important that the child’s voice was heard:
“This appears obvious that this change should occur to overcome resident parents that control the children.” (Individual)
5.6.12 Several individuals and organisations suggested that legislative clarity is always beneficial. They felt that current interpretation and practice in this area differed, and therefore greater clarity should help to standardise experiences and remove a potential barrier:
“There is uncertainty and conflicting case law on this point and so the wording of Section 11 of the Act needs to be amended to provide clarification.” (Individual)
“…there may be confusion over whether a court can make an order under s.11 of the 1995 Act to grant a person contact with a child without giving that person PRRs and it is appropriate that this should be clarified.” (Other Organisation)
5.6.13 A few also suggested that clarification of the legislation was required to ensure it was aligned with the UNCRC and the ECHR. One children’s organisation also felt similar changes were required in the Children’s Hearing system to widen the relevant persons’ test to include siblings and make it compatible with the ECHR. Similarly, one public body suggested that such clarification would also be in line with the United Nations Guidelines for the Alternative Care of Children, UN General Assembly, 2010, A/RES/64/142.
5.6.14 A few organisations (including one children’s organisation, one from the legal profession, and one local authority) suggested the following amendments to Section 11 of the 1995 Act:
11. Court orders relating to parental responsibilities etc.: (1) In the relevant circumstances in proceedings in the Court of Session or Sheriff Court, whether those proceedings are or are not independent of any other action, an order may be made under this subsection in relation to (a) parental responsibilities; (b) parental rights; (ba) contact with siblings; (c) guardianship; or (d) subject to section 14(1) and (2) of this Act, the administration of a child’s property.
5.6.15 A few respondents also considered it important to support any changes with further education/awareness raising, both for families and the authorities involved (e.g. solicitors, Sheriffs, and local authorities). This was relevant to both making people aware of siblings’ rights and legal options, as well as the benefits of maintaining sibling relationships. A few also felt that pursuing contact through the court should be avoided if possible, with voluntary/informal arrangements being agreed by those involved, or with the support of child centred mediation or family therapy advocated as less adversarial and preferable methods.
5.6.16 A few respondents also felt that the provision should be extended to other family members:
“We think that this should apply to all ‘people of importance’ not just siblings (so grandparents and others as well).” (Public Body)
Caveats and Potential Limitations
5.6.17 Several respondents (both individuals and organisations) caveated their support and suggested that certain limitations or exclusions should apply, for example, in the case of abuse and criminal activity that could result in risk/harm to the child (or resident parent). It was considered important that child welfare and safety was paramount in any decision. Risk factors and whether such contact was in (both) the children’s best interests needed to be considered on a case-by-case basis, it was felt.
5.6.18 It was also suggested by one individual that parents who have been previously denied contact may seek to facilitate this via sibling contact, and so any court/reporter needed to be aware of this possibility. A few individuals and organisations felt that court costs could be a potential barrier for siblings, therefore improved access to legal aid for young people was required. Two organisations also suggested that a child should not be held accountable/suffer any negative repercussions for any breach of a contact order.
No Need for Change
5.6.19 Among those who were unsupportive of the suggested change, a few individuals felt that children should not have to engage in court proceedings. Rather, they suggested that contact should be facilitated by the parents and/or that the child can seek out and build relationships when they are older. It was also highlighted that not all family members would be a good influence and that contact may not be in their best interests.
5.6.20 Organisations who were unsupportive typically felt it was not required as suitable provision and clarity already existed in the legislation. One suggested that better education on the issue may be a more suitable solution rather than legislative changes.
5.6.21 Two respondents (one individual and one organisation) also felt that young people would make little use of such a provision. This organisation also indicated that siblings should not be given a right to contact, but rather the views of the child should be considered in any decision.
5.7 Supporting Looked After Children Maintain Relationships
5.7.1 The main consultation document highlighted that the Looked after Children (Scotland) Regulations 2009 and subsequent Guidance recognises the importance of maintaining established family life between children who have lived together. The Guidance states that local authorities should try to ensure that siblings are placed together, or placed near each other where practicable and appropriate. Where siblings are not placed together, then it may be appropriate for frequent contact to be maintained.
Q10. What do you think would strengthen the existing guidance to help a looked after child to keep in touch with other children they have shared family life with?
5.7.2 Only free-text responses were sought at this question, no quantitative element was included. A total of 132 respondents provided a substantive response, consisting of 51 organisations and 81 individuals.
5.7.3 Adopting a broad understanding of who is important in a child’s life was highlighted as being important by several respondents. It was suggested that the child should always be involved in identifying those who are important to them and that their views should be recorded in the child’s plan. Two organisations also suggested that the current wording was too restrictive and may exclude the development of a relationship between a child and a new-born sibling, for example. Rather it was suggested the wording used at Q9 in the consultation was more appropriate.
5.7.4 Some individuals suggested that there should be a ‘presumption’, ‘pre-requisite’ and/or ‘legal requirement’ that these relationships are protected. Again, however, it was stressed (by organisations and individuals) that ensuring contact was in the best interests of all the children involved was paramount, and that the child’s views regarding maintaining or re-establishing contact should be sought regularly. Several stressed that risks needed to be assessed and contact should be refused/restricted where it may place a child at risk:
“Careful consideration, assessment and planning on the parts of both (or all) children involved is fundamental to making sure contact is in best interests of all children involved.” (Children’s Organisation)
5.7.5 Some respondents (both individuals and organisations) suggested that siblings should be supported to spend time together in the best setting possible (with some suggesting that contact centres could be used). It was also suggested that greater use could be made of new technologies in facilitating/increasing contact, such as texts, video messaging, and social media. Various suggestions were also given related to changes to practice (typically by only one/a few respondents each), including:
- Analyse current barriers and learn from existing good practice;
- Greater training/guidance for foster and kinship carers, adoptive parents, parents, young people, social workers, etc. regarding the benefits of sibling contact;
- Provide a clear definition of ‘established/shared family life’;
- Recording all sibling relationships in official records, and ensuring life-story work for children permanently separated from their siblings;
- Active consideration of sibling contact by those preparing reports, making decisions, and those involved in the development of the child’s plan,
- Consideration of reunification/contact at every review;
- Reducing drift and delay with permanence planning to allow practitioners time to assess contact with the wider family;
- National focus on the PACE 2 programme;
- Supporting siblings who are experiencing difficulties to repair their relationships rather than curtailing contact;
- Onus on local authorities and Children’s Hearings to specify why one option is chosen over another, in particular, requiring them to record and evidence why co-placement/contact was not provided;
- Provide adequate resources for professionals to develop skills and capacity, and provide adequate resources/support for foster families to accommodate the co-placement/contact of siblings;
- Accountability of child welfare agencies (and parents where relevant) and sanctions where arrangements have not been upheld (including possible inspection of children’s services); and
- Parenting co-ordinators assisting siblings to keep in touch.
5.7.6 Most local authorities and public bodies, along with some individuals felt that clearer and strengthened guidance may be helpful. One public body suggested guidance on contact should give much more prominence to sibling contact; and cover the looked after children regulations, evidence-based practice on contact (or point to resources), and all the interactions with the legal system, i.e. the tests that will be applied in children’s hearings and in appeals against hearing’s decisions, as well as the tests applied to decision making in the Family and Permanence/Adoption Courts. In addition, two organisations (including one local authority and one public body) suggested that guidance should also highlight that it is the responsibility of all of those supporting the child, including the local authority, foster carers and independent foster care agencies, family, multi-agency professionals, etc. to support positive existing relationships where possible. A few local authorities also suggested that wider use could be made of Lifelong Links (which can connect children with significant people from their past, including previous foster carers, children who were in care settings with them etc.) and family group conferencing/decision making.
5.7.7 However, it was suggested by several organisations (largely from other sectors) that, despite the current policy and guidance in place, siblings often continue to be separated, and have infrequent and poor quality opportunities for contact. It was therefore suggested (by five children’s organisations, one family support organisation, and one member of the legal profession, as well as several individuals), that an enforceable legal duty should be placed on local authorities to promote and facilitate (co-placement or) sibling contact. One also suggested that the government needed to support local authorities financially to meet such a duty.
5.7.8 Several organisations (including children’s organisations, family support organisations, those from the legal profession, and one local authority) identified/supported specific amendments, both for legislation and statutory and practice guidance. These amendments are included in full at Appendix A. Such amendments were considered necessary to ensure that local authorities promote (and not simply assess) sibling contact, provide recourse for looked after children where a local authority does not prioritise sibling co-placement or contact, and place sibling relationships on an equal footing with parental relationships to ensure they are not overlooked.
5.7.9 It was also suggested by several organisations (and one individual) that similar changes were needed to the Children’s Hearings (Scotland) Act 2011 and the Adoption and Children (Scotland) Act 2007 (again, specific amendments are detailed at Appendix A). These were considered necessary to ensure sibling relationships are prioritised, that sibling contact is facilitated, and that siblings can participate in proceedings as appropriate.
5.7.10 One respondent also suggested that the current regulations needed to be promoted to a greater extent, with a promotional campaign suggested as one way to ensure young people in care are aware of the options open to them in this respect.
5.8 Enforcing Contact Orders
5.8.1 Currently, when someone believes a contact order has been breached they can return to court and either seek a variation of the contact order or seek to hold the person breaching the contact order in contempt of court. Contempt of court in civil cases carries penalties of up to two years in prison and/or an unlimited fine in the Court of Session, or up to three months’ imprisonment and/or a fine of level 4 on the standard scale in a Sheriff Court.
5.8.2 The Scottish Government outlined different options in relation to enforcement (which it highlighted could be used in combination), and sought views in relation to respondents’ preferences.
Q11. How should contact orders be enforced?
|Option one - no change to existing procedure||23||9%|
|Option two - alternative sanctions. (e.g. unpaid work, attending a parenting class or compensation)||44||17%|
|Option three - making a breach of a contact order a criminal offence with penalties including non-custodial sentences and unpaid work||73||29%|
5.8.3 Several possible enforcement options were suggested in the consultation document, with 29% preferring option three (making a breach of a contact order a criminal offence), 17% preferring option two (alternative sanctions), and 9% considering that option one (no change) was most appropriate. A further 21% suggested ‘another option’ and 24% gave no response. It should be noted that only two organisations advocated for option three. The popularity of this option was driven by individuals. All other responses received more balanced support from a mix of individuals and organisations.
Option 1: No Change Required
5.8.4 Of those who indicated that no change was required to existing procedure, a few felt that the current measures were appropriate and that the system was working. It was also suggested that increasing sanctions and/or establishing a breach as a criminal offence would not resolve the existing problems, may create more difficulties, and may be difficult to enforce in practice.
5.8.5 A few individuals also felt that the definition of a ‘breach’ was unfair as it focused on the resident parent not facilitating contact and only considered the non-resident parent to have breached the contact order if they failed to return the child. Respondents, however, felt that any failure of the non-resident parent to attend contact sessions should also be considered as a breach.
Option 2: Alternative Sanctions
5.8.6 It was felt by several respondents that current procedures to deal with breach of contact orders were not sufficient and that alternative sanctions could prove helpful in dealing with the issue.
5.8.7 Some felt that parties do not currently take breaching a contact order or contempt of court seriously, and felt that more needed to be done to ensure they understand the consequences and the severity of the matter. One respondent suggested that a notice advising of the consequences of breaching the contact order could be given to both parties at the point an order is made:
“Some parties do not take the issue of contempt of court/breaching an order anywhere near as seriously as they should as they remain convinced that nothing will happen if they do not obtemper the order… This would hopefully act as a deterrent on both sides and ensure parties adhere to orders.” (Individual)
5.8.8 One individual suggested that contempt of court proceedings should not be used as a last resort, but happen earlier in cases where breaches of contact order occur. Again, it was felt that this would help parties to understand the severity and consequences of a breach, and help to prevent further alienation and dysfunctionality.
5.8.9 Alternative sanctions were typically considered more desirable (by both individuals and organisations) than making a breach a criminal offence and/or imposing a prison sentence. It was felt that financial sanctions (such as a fine or the suspension of social security benefits) were inappropriate as this would negatively impact on the child, and imprisonment could deprive the child of their primary carer. Ultimately, it was felt that any sanctions imposed should not be detrimental to the child.
5.8.10 It was suggested (by both individuals and organisations) that the reasons for a breach needed to be fully understood before any sanctions were imposed. Further, it was felt that a variation to the order or additional support to facilitate contact may be more appropriate than sanctions in some cases. Some highlighted that a breach may be due to a child’s refusal to participate in the contact rather than a parent being obstructive, and stressed that the child should not face sanctions. In order to reduce such instances, it was felt important that the views and best interests of the child are central to the process in order to avoid ordering a child to have contact with a parent they do not wish to see. Others suggested that the breach could be a result of trauma or abuse (to the child and/or resident parent), and due to safety concerns:
“Given that currently there is not rigorous or evidence-based risk assessment of cases where there is domestic abuse, the decision for a parent to refuse contact could be based on their accurate assessment that contact will be a risk to their child.” (Local Authority)
“We do not advocate criminalising civil proceedings, there may be underlying trauma impacting on facilitating a contact order which need to be understood to ensure there is no re-victimisation of the victim.” (Local Authority)
5.8.11 Other comments made by one respondent each included the need for the process to allow contact to be stopped in the event that it was no longer considered to be in the best interests of the child, along with several suggestions for alternative sanctions, such as removing the contemptor’s driving license or passport, and therapy (possibly as a condition of a probation order).
Option 3: Making a Breach of a Contact Order a Criminal Offence
5.8.12 As outlined above, only three organisations preferred this option compared to 71 individuals.
5.8.13 Typically, individuals felt that the current system was not sufficient at deterring or dealing with breaches of contact orders. Many felt that one party would withhold contact due to difficulties in their relationship with the other party, in attempts to hurt or alienate the other party, and due to the lack of consequences for such action. Some felt that, as the contact order would have been made in the best interests of the child, withholding contact and breaking arrangements was negatively impactful:
“Far too many parents ignore a contact order knowing that little to nothing will realistically be done in relation to penalisation. This leads to continued confusion and insecurity to both child and parent.” (Individual)
“I have experienced several breaches of the contact order I have by my ex-partner and absolutely nothing has been said or raised about this, it is as if she can do as she pleases regardless. If there was the threat of a criminal conviction then I feel these breaches would not [have] occurred. There has to be consequences for any parent breaching contact orders or obstructing the child's contact.” (Individual)
5.8.14 It was felt that a strong deterrent was required in order to instil contact orders with necessary authority and reduce the perceived abuse of such orders. It was also suggested that the court needed to have sufficient means to ensure its orders are not ignored:
“The court must have the means to enforce any orders it makes, and the court should not make any order it is not prepared to enforce otherwise the authority of the court is fatally undermined.” (Individual)
5.8.15 Some individuals felt that breaking a contact order was/or should be a criminal offence and should be dealt with accordingly. One respondent highlighted that breaking court orders in other situations was a criminal offence and therefore contact orders should be treated in the same way:
“The person responsible is breaching a court order and this is criminal in other areas of legislation so why should this be different?” (Individual)
5.8.16 A few individuals also suggested that by criminalising the issue parties would be able to involve the police when a breach occurred. It was felt that this would provide a faster and less expensive response (for the party) than the current arrangements where they need raise an action and then go back to court:
“…even with a court order, the parent without custody has to incur more legal fees by engaging a lawyer and going back to court. This way, the police could enforce the order.” (Individual)
5.8.17 Of the two organisations (both family support organisations) who supported this option, one suggested that the family court should operate like any other court with breaches treated as criminal acts. The other suggested that those who break contact orders were “playing the system” (Family Support Organisation) as they know there will be no consequences.
5.8.18 Some of those who were opposed to making a breach of a contact order a criminal offence, however, suggested this was inappropriate, would not resolve the situation between the parties. It was also felt this could create additional difficulties for parents, and would not be in the best interests of the child:
“Criminalising breach of a contact order would be a wholly-inappropriate response to troubled family relationships. It would do nothing to resolve the conflict between the parties and, indeed, might well exacerbate it. It risks burdening a child who refused contact with a lifetime of guilt over the parent’s punishment, while creating a criminal record for an otherwise law-abiding parent.” (Individual)
“In imposing any kind of sanction, consideration must be given as to what is in the best interests of the child. We believe the imposition of a criminal record or custodial sentence on parents will not support or promote a child's wellbeing and could serve only to create further problems for parents, and consequently adversely impact upon their child.” (Children’s Organisation)
5.8.19 Some options suggested by respondents were close in nature to options one to three outlined in the consultation document, although some additional sanctions suggested. These included that a combination of options two and three would be beneficial, so that sanctions are applied in minor/early breaches, and criminal convictions used as a last resort for those parties who persistently and wilfully breach orders.
5.8.20 While several individuals suggested that a prison sentence was the most suitable penalty for breaching court orders, and a few organisations felt it was appropriate to retain imprisonment for extreme cases, several indicated that they did not support making a breach of a contact order a criminal offence.
5.8.21 Other options suggested (typically by just one/a few respondents each) included:
- Robust re-consideration of the contact arrangement prior to sanctions;
- Use of a child welfare reporter to obtain the child’s views and potentially review/revise the order;
- Increased support or use of alternative dispute resolution (ADR) to facilitate contact, including mediation (which involves the child), family therapy, use of a family support worker or contact facilitator, social work involvement, and contact centres;
- Referral to the Children’s Reporter;
- Earning arrestment/benefit sanctions, asset seizures as optional sanctions, and/or compensation;
- Other classes could include Parenting Apart classes and domestic abuse classes;
- Sanctions such as community service or incarceration to be undertaken during a child’s contact time with the compliant parent (or some other time) so as not to limit a parent’s ability to earn and/or care for the child;
- Contact to cease with offending party or transfer of residence;
- Creating a simplified procedure to enforce contact orders after the final order has been issued; and
- More welfare workers to speak with children and parents about the contact.
5.8.22 The reasons given by respondents for these other options were, on the whole, similar to those provided for options two and three above. Those in favour of sanctions and punishments mainly felt they were necessary to stop parties from thwarting contact unnecessarily. However, some felt that imprisonment and/or criminalising a breach of contact orders was rarely appropriate. Others highlighted that children may not want the contact and that they should not be forced to spend time with someone they don’t want to see. Some suggested that a breach should be treated as a flag for concern indicating a need to investigate if there are underlying concerns for the child’s (or parent’s) safety or best interests. Several suggested that greater importance needed to be placed on the voice and experiences of the child (both to understand the reasons for any breaches and to create more suitable orders which would result in lower instances of breaches), and that all investigations of a breach needed to be trauma and abuse sensitive. It was also stressed again that breaches should be considered to apply equally to resident and non-resident parents.
5.8.23 Again, some respondents suggested that (any/all) sanctions were inappropriate and failed to solve the problem - they were seen as reactionary. Rather it was felt that a better option would be to try and understand the reason for the breach and/or why children were not being made available for contact, and to provide support to ensure that it could be facilitated or amend the order as necessary. It was also considered inappropriate to criminalise the behaviour of parents with learning disabilities who may not understand the order or require support to arrange contact. Similarly, it was considered inappropriate to criminalise domestic abuse victims who were trying to keep their children safe when (it was considered that) inappropriate and unsafe decisions had been made. In addition, it was suggested that the use of sanctions could risk the perpetrators of abuse using this as a further method of coercive control to continue the abuse, and so parents that continually raise contempt of court actions for this purpose should be prevented and penalised for doing so, it was felt.
5.8.24 Several respondents, regardless of which option they supported, felt that the use of parenting classes as a sanction was inappropriate. They highlighted that the purpose of the class was to develop the parent/child relationship, which was not seen as the key issue for a breach of a contact order. Also, the voluntary nature of such classes was important to their success, and therefore it was felt they would be ineffective if parents were forced to attend. Others, however, were supportive of the use of such classes.
5.8.25 Finally, some of those who did not provide a quantitative response but provided qualitative comments felt that it was important to fully understand any non-compliance and implement more supportive approaches to facilitate contact. Others thought the current system should continue, and that it was important to retain the potential for fines and imprisonment (in cases of last resort) to ensure there is an incentive for parties to comply with the court process, but that it may also be helpful to introduce some more child-friendly sanctions.
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