Children (Scotland) Act 2020 - section 23(1) and section 24(1): fourth report on the Scottish Ministers' duties

Fourth report on the Scottish Ministers' duties under section 23(1) (funding for alternative dispute resolution) and section 24(1) (pilot scheme for mandatory alternative dispute resolution meetings) of the Children (Scotland) Act 2020.

Pilot of mandatory meetings on alternatives to court

15. The Scottish Ministers have not fulfilled their duty under section 24(1) of the 2020 Act to establish a pilot of mandatory meetings on alternatives to court. However, work is progressing on these provisions.

16. The Scottish Government is proceeding on the basis that:

  • the meetings under section 24 should be individual;
  • if provision to establish a pilot scheme is required, this should be done by regulations made under section 24(6) rather than by way of a Practice Note. Regulations under section 24(6) are subject to the affirmative procedure; and
  • Facilitators of the meetings should ask those attending to consider how the views of the child have been and will be sought. The Scottish Government have engaged with providers of ADR to find out how they currently ensure regard is had to children's views when ADR takes place.

17. Following the session held in January 2022 with ADR providers to discuss how such a pilot could work (see the 1 October 2021 to 1 April 2022 period statement), the Scottish Government has engaged with Relationships Scotland on the possibility of them coordinating certain aspects of the pilot from 2023. The Scottish Government has also engaged with CALM Scotland, another accredited provider of family mediation.

18. Relationships Scotland do not cover all forms of ADR. The Scottish Government will make sure that whoever is put in place to facilitate the information meetings will work with other ADR providers to ensure that a wide variety of forms of ADR are appropriately covered and represented in the pilot.

19. In these discussions, consideration has been given to the following points:

  • how many cases would be required for the pilot;
  • how many facilitators will be needed;
  • what training will be required for the facilitators;
  • whether information meetings should be in-person, virtual or both;
  • whether or not geographical locations need to be identified for the pilot (e.g. particular courts or sheriffdoms), or if they are virtual only, whether operating the pilot nationwide would be the best option;
  • what information will be provided to parties who attend, including on costs and benefits of various forms of ADR;
  • how long the pilot should last for;
  • what resources will be needed by the pilot provider to coordinate the work; and
  • how the pilot will be evaluated.

20. Section 24(4) of the 2020 Act requires the Scottish Ministers if they have not fulfilled their duty under subsection (1) to explain why not and to state when they expect to fulfil it.

21. On why the duty has not been fulfilled, the reasons set out in the statement covering the period from 1 October 2021 to 1 April 2022, regarding the up-front work, remain in effect. Work to fulfil the duty will include the following:

  • The training of facilitators and time for facilitators to prepare.
  • The development of information for parties, including time to produce the information and seek views on it.
  • The development of any secondary legislation.
  • Any proposals to change court rules.

22. We intend to carry out further work to establish this pilot during 2023. However, the pilot itself is unlikely to commence until at least late 2023, though this will depend on the time required for some of the tasks listed at paragraph 21 to come into effect (particularly any secondary legislation and changes to court rules).



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