Time to put children's rights at the heart of the civil court system

Children 1st Policy Manager Chloe Riddell, writes about how we have been working alongside children and families and our partners to transform children’s experiences of the civil justice system in Scotland.

Time and time again, children and families have told us they feel let down by the civil court system in Scotland, side-lined by decisions made about them without any meaningful involvement.

The children we work alongside, and survivors in our domestic abuse services, have told us that their voices are being ignored when life changing decisions are being taken by the civil courts, especially in divorce proceedings and child contact arrangements.

One survivor told us: “I have had such a horrendous experience with the courts. I would never wish it upon anybody or any child.”

Sometimes children feel that their views aren’t taken into account and decisions are made about the important people in their lives that they do not understand or do not protect their safety properly.

That is why we have been working tirelessly alongside Scottish Women’s Aid, Professor Kay Tisdall, Dr Fiona Morrison and the Children and Young People’s Commissioner for Scotland, and the families we work with to change the law so that children’s voices are heard, their views are taken into account and children’s participation rights are upheld in the courts.
Last year the Scottish Government launched the Children (Scotland) Bill, in response to these concerns. The Bill was designed to ensure that courts always uphold and protect children's right to have their voices heard, be part of decisions that affect them and to have their best interests taken into account.

Later this month this transformational change takes a step closer to becoming law as politicians prepare to meet at the Scottish Parliament for the final time to discuss the Bill.
To reach this stage in the law-making process we have worked hard with our partners, calling for radical changes to make sure the Bill is compatible with the United Nations Convention on the Rights of the Child. We want to see significant changes to the way children and families currently experience the civil courts. At every step of the way, we have also worked closely with our Children 1st colleagues working to address domestic abuse in places like the Borders to find out what barriers survivors and children face when trying to share their views with the courts and with our family support workers and practitioners to ensure children’s voices are at the heart of this process.

We have worked hard to ensure that ALL children are presumed capable of having their views heard—a change to the existing law, which has a presumption that only a child of 12 years or older is of sufficient age and maturity to form a view. That is a really significant change, as it means that, with very few exceptions, all children going through the civil courts will be deemed capable of giving their views, and that these views will be taken into account.

We have also worked closely with policy makers and politicians to ensure that children are not only able to share their view and have this taken into account but are also asked how they want to give their views in a civil court case. For example, some children may want to speak directly to the sheriff, while others may be happier to chat with a child welfare reporter who comes to ask questions. Some may event want to draw a picture, submit a video or write a letter.

Other big changes that the Bill will introduce include the courts having a duty to explain decisions to a child. Courts will also be duty bound to investigate the reasons that a contact arrangement may not have taken place.

And we’ve been strongly advocating for a clause to be added to the bill which says that children should have their best interests taken into account when decisions are being made about how information about them is shared with the court. 

Glasgow Sheriff Court

We think that these provisions uphold children’s rights and provide better protections to survivors of domestic abuse.The Bill has changed significantly since it was first introduced. At Children 1st we are proud to have had the opportunity to work alongside children and families and our partners to shape these changes and produce something that promises to deliver transformational change for families experiencing the civil courts. As we look beyond the Parliamentary process towards implementation of the new legislation we also know that there is hard work ahead to ensure these important laws translate into practical system change on the ground. This means providing enough resources to ensure children’s new rights to be heard and to choose how they want to express their views are a reality. It also means investing in training at all levels.

This is an opportunity to be bold. At Children 1st we are now working to pilot Scotland’s first Barnahus – the European best practice model for supporting child victims and witnesses in the criminal justice system. Scotland looks to incorporate the UNCRC into Scots Law next year. Radical changes to the Children’s Hearings system, in line with the calls to action set out in the Promise, are on their way. It’s time for a justice system that always puts children’s rights front and centre. Scotland’s children deserve no less.