Part 3: Commission and diligence
3.01 We are seeking your views on whether changes are needed in relation to the law on commission and diligence in cases under section 11 of the 1995 Act.
3.02 Commission and diligence is the procedure for recovering and preserving documents or other material for use in a court case and also covers the taking of evidence.
3.03 In particular, we would like your views on whether specific legislation should be made in relation to commission and diligence in cases under section 11 of the 1995 Act. This legislation would lay down that a court, in deciding whether confidential information should be provided to a party seeking it, should only do so where this is in the best interests of the child and after the views of the child have been taken into account. The views of the child could only be taken into account where the child has sufficient age and maturity to express a view.
3.04 There is a variety of existing legislation on recovering and preserving documents including:
- The Administration of Justice (Scotland) Act 1972. This made provision on the Court of Session and the Sheriff Court being able to order the recovery of documents which are relevant to an existing case or a likely forthcoming case. The 1972 Act was without prejudice to the existing powers of the Court of Session and the Sheriff Court in this area;
- Section 10 of the Court of Session Act 1988 made some provision on the Outer House of the Court of Session granting commission and diligence;
- Chapter 28 of the Sheriff Court Ordinary Cause Rules makes provision on procedures in the sheriff court for recovery of evidence. The Ordinary Cause Rules also make provision on forms to be used for this purpose;
- Chapter 35 of the Court of Session Rules make provision on the recovery of evidence in the course of on-going court proceedings; and
- Chapter 64 of the Court of Session Rules makes provision on applications for an order under section 1 of the 1972 Act where an action has not already started.
3.05 Local authorities and other organisations – including the NHS and the voluntary sector – may provide confidential services to children including during a parental separation. In some cases, a child will have experienced domestic abuse. Information held by local authorities and others can, in theory, be produced as evidence in a civil court case relating to the child. For example, if a child’s parents have asked the court to decide which parent a child should live with, one parent may ask the court to look at information held by an NHS psychologist about the child which the child provided in confidence.
3.06 Children and young people may reveal personal and private information to a support worker that they do not wish to be shared with anyone else. A child may not feel comfortable in revealing information if they know that the information may be used in a court case. There is also a risk that information may be shared with someone who is alleged to have abused the child, which may put children in danger.
3.07 However, support workers cannot guarantee absolute confidentiality. There may be good reasons why confidential information relating to a child needs to be shared with the court. For example, the court needs all relevant information and evidence to enable it to come to an informed decision.
3.08 The Scottish Government held a roundtable discussion in December 2015 and sent a letter seeking views on commission and diligence to a number of key stakeholders in March 2016.
3.09 The majority (but not all) of stakeholders were of the view that the legislation needed to be changed to ensure that confidential documents are only disclosed where this is in the best interests of the child. Stakeholders also suggested that any revised legislation could specify that the views of the child must be taken into account. Any change could perhaps be done by amending the Administration of Justice (Scotland) Act 1972.
3.10 There are a number of benefits to specifying that courts must take into account the best interests of the child and take the child’s views into account. The main benefit is that children may be more willing to share information that will improve their wellbeing and health with organisations if they are reassured that this will not be shared with a court unless this is in their best interests.
3.11 However, there are also arguments for retaining the legislation as it is currently framed. A court needs all the information available to make an informed decision. In addition, some stakeholders have said previously that the current law in this area works and no changes are required. A court must already weigh up the rights of the child in maintaining the confidentiality of information before deciding whether it should be disclosed and, in that process, would consider the best interests of the child and may take the child’s views into account.
Question 5): 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?
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