Children (Scotland) Act 2020

Regard to be had to child's views

Duty to consider contact when making etc. compulsory supervision order

1

• (1) The Children (Scotland) Act 1995 is modified as follows.

• (2) In section 6 (views of children)—

• (a) in subsection (1)—

• (i) after “shall” insert “ comply with subsections (1A) and (1D) ”,

• (ii) the words after paragraph (b) are repealed,

• (b) after subsection (1) insert—

(1A) The person must— (a) give the child an opportunity to express the child's views in— (i) the manner that the child prefers, or (ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child's preference, and (b) have regard to any views expressed by the child, taking into account the child's age and maturity. (1B) But the person is not required to comply with subsection (1A) if the person is satisfied that— (a) the child is not capable of forming a view, or (b) the location of the child is not known. (1C) In considering whether the child is capable of forming a view, the person is to start with the presumption that the child is. (1D) The person must, so far as is practicable, have regard to the views of any other person who has parental responsibilities or parental rights in relation to the child.

.

• (3) In section 11 (court orders relating to parental responsibilities etc.)—

• (a) subsections (7) to (7E) are repealed,

• (b) in subsection (8), the words “, notwithstanding subsection (7) above,” are repealed,

• (c) subsections (9) and (10) are repealed.

• (4) After section 11 insert—

(11ZA) (1) In deciding whether or not to make an order under section 11(1) and what order (if any) to make, the court must regard the welfare of the child concerned as its paramount consideration. (2) The court must not make an order under section 11(1) unless it considers that it would be better for the child concerned that the order be made than that none should be made at all. (3) When considering the child's welfare and whether it would be better for the child to make an order than not, the court must have regard to the following matters in particular— (a) the need to protect the child from abuse, or the risk of abuse, which affects, or might affect, the child, (b) the effect that abuse, or the risk of abuse, might have on the child, (c) the ability of a person to care for, or otherwise meet the needs of, the child, where that person has carried out, or might carry out, abuse which affects, or might affect, the child, (d) the effect that abuse, or the risk of abuse, might have on the carrying out of responsibilities in connection with the welfare of the child by a person who has (or, by virtue of an order under section 11(1), would have) those responsibilities, (e) whether it is, or would be, appropriate for an order to require that two or more persons co-operate with one another with regard to matters affecting the child. (4) In subsection (3)— - “abuse” includes— 1. violence, harassment, threatening conduct and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress, 2. abuse of a person other than the child, and 3. domestic abuse, - “conduct” includes— 1. speech, and 2. presence in a particular place or area. (11ZB) (1) In deciding whether or not to make an order under section 11(1) and what order (if any) to make, the court must— (a) give the child concerned an opportunity to express the child's views in— (i) the manner that the child prefers, or (ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child's preference, and (b) have regard to any views expressed by the child, taking into account the child's age and maturity. (2) But the court is not required to comply with subsection (1) if satisfied that— (a) the child is not capable of forming a view, or (b) the location of the child is not known. (3) The child is to be presumed to be capable of forming a view unless the contrary is shown. (4) Nothing in this section requires a child to be legally represented in any proceedings in which the child's views are sought, if the child does not wish to be.

.

• (5) In section 14 (jurisdiction and choice of law in relation to certain matters), in subsection (4), for “subsection (7) of that section” substitute “ sections 11ZA and 11ZB ”.

• (6) In section 16 (welfare of child and consideration of his views), for subsection (2) substitute—

(2) In the circumstances mentioned in subsection (4), the sheriff must— (a) give the child concerned an opportunity to express the child's views in— (i) the manner that the child prefers, or (ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child's preference, and (b) have regard to any views expressed by the child, taking into account the child's age and maturity. (2A) But the sheriff is not required to comply with subsection (2) if satisfied that— (a) the child is not capable of forming a view, or (b) the location of the child is not known. (2B) The child is to be presumed to be capable of forming a view unless the contrary is shown.

.

• (7) The italic heading preceding section 11 becomes “ Court orders relating to parental responsibilities etc. ”.

• (8) Before section 12, insert as an italic heading “ Exercise of court functions relating to children ”.

Proceedings under Adoption and Children (Scotland) Act 2007

2

• (1) The Adoption and Children (Scotland) Act 2007 is modified as follows.

• (2) In section 14 (considerations applying to the exercise of powers)—

• (a) in subsection (1), for “(4)” substitute “ (4C) ”,

• (b) subsection (4)(b) is repealed,

• (c) after subsection (4) insert—

(4A) The court or adoption agency must— (a) give the child an opportunity to express the child's views in— (i) the manner that the child prefers, or (ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child's preference, and (b) have regard to any views expressed by the child, taking into account the child's age and maturity. (4B) But the court or adoption agency is not required to comply with subsection (4A) if satisfied that the child is not capable of forming a view. (4C) The child is to be presumed to be capable of forming a view unless the contrary is shown.

,

• (d) in subsection (6), for “(4)” substitute “ (4C) ”,

• (e) subsection (8) is repealed.

• (3) In section 84 (conditions and considerations application to making of order)—

• (a) for subsection (5)(a) substitute—

(a) give the child an opportunity to express the child's views in— (i) the manner that the child prefers, or (ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child's preference,

,

• (b) for subsection (5)(b)(i) substitute—

(i) any views expressed by the child, taking into account the child's age and maturity,

,

• (c) after subsection (5) insert—

(5A) But the court is not required to comply with subsection (5)(a) if satisfied that the child is not capable of forming a view. (5B) The child is to be presumed to be capable of forming a view unless the contrary is shown.

,

• (d) subsection (6) is repealed.

Proceedings under Children’s Hearings (Scotland) Act 2011

3

• (1) The Children's Hearings (Scotland) Act 2011 is modified as follows.

• (2) In section 27 (views of the child), for subsections (3) and (4) substitute—

(3) The children's hearing, pre-hearing panel or the sheriff must— (a) give the child an opportunity to express the child's views in— (i) the manner that the child prefers, or (ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child's preference, and (b) have regard to any views expressed by the child, taking into account the child's age and maturity. (4) But the children's hearing, pre-hearing panel or the sheriff is not required to comply with subsection (3) if satisfied that— (a) the child is not capable of forming a view, or (b) the location of the child is not known. (4A) The child is to be presumed to be capable of forming a view unless the contrary is shown.

.

Vulnerable witnesses and parties

Vulnerable witnesses: prohibition of personal conduct of case

4

• (1) The Vulnerable Witnesses (Scotland) Act 2004 is modified as follows.

• (2) In section 11 (interpretation of Part 2), in subsection (5), in the definition of “relevant proceedings”, for “of the 2011 Act (other than section 98 or 99)” substitute “ and section 154 of the 2011 Act ”.

• (3) After section 11 insert—

(11A) (1) In relevant proceedings, the court is to consider a person to be a vulnerable witness if it is alleged in the statement of grounds that the person is the victim of any of the following conduct— (a) conduct amounting to— (i) an offence mentioned in schedule 1 of the Criminal Procedure (Scotland) Act 1995, (ii) an offence under Part 1, 4 or 5 of the Sexual Offences (Scotland) Act 2009, (b) domestic abuse, (c) being forced into a marriage or civil partnership. (2) For the purposes of subsection (1)— (a) “the statement of grounds” means the statement of grounds, within the meaning of section 89(3) of the 2011 Act, that— (i) gave rise to the relevant proceedings, or (as the case may be) (ii) gave rise to the grounds determination which, in turn, gave rise to the relevant proceedings, (b) the reference to being forced into a marriage is to be construed in accordance with subsections (4) to (6) of section 1 of the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011, (c) the reference to being forced into a civil partnership is to be construed in accordance with the provisions mentioned in paragraph (b), subject to the references in those provisions to marriage being read as references to civil partnership. (3) The Scottish Ministers may by regulations— (a) modify the list of conduct in subsection (1) by— (i) adding a description of conduct, or (ii) modifying or removing a description of conduct added to the list by regulations under this paragraph, and (b) make any other modifications to this section that appear to the Scottish Ministers to be necessary or expedient in consequence of provision modifying the list. (4) Regulations under subsection (3) are subject to the affirmative procedure. (11B) (1) In proceedings to which subsection (2) applies, the court is to consider a person to whom subsection (3) or (4) applies to be a vulnerable witness. (2) This subsection applies to proceedings, other than relevant proceedings, in which the court is considering whether to make an order under section 11(1) of the Children (Scotland) Act 1995. (3) This subsection applies to a person if there is in force a non-harassment order, interdict or any similar order or remedy granted by a court prohibiting certain conduct towards the person by a party to the proceedings. (4) This subsection applies to a person if— (a) a relevant offence has been committed against the person and a party to the proceedings has been convicted of committing it, or (b) a party to the proceedings is being prosecuted for committing a relevant offence against the person. (5) For the purposes of subsection (4)— (a) the following are relevant offences— (i) an offence specified in section 288C(2) of the Criminal Procedure (Scotland) Act 1995, (ii) an offence specified in section 288DC(1) of that Act, (iii) an offence specified in section 288E(3) of that Act, (iv) an offence under section 1(1) of the Prohibition of Female Genital Mutilation (Scotland) Act 2005, (v) an offence under section 3(1) of that Act, (vi) an offence under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010, (vii) an offence under section 122(1) of the Anti-social Behaviour, Crime and Policing Act 2014, (viii) an offence under section 122(3) of that Act, (ix) an offence which, in the opinion of the court, is the equivalent in the law of England and Wales, Northern Ireland or a member State of the European Union to an offence mentioned in any of the preceding sub-paragraphs, (b) a person is to be regarded as being prosecuted for committing an offence if— (i) a prosecutor has initiated proceedings against the person in respect of the offence, and (ii) those proceedings have not yet been dismissed or resulted in the conviction or acquittal of the person in respect of the offence. (6) The Scottish Ministers may by regulations— (a) modify the list of offences in subsection (5)(a) by— (i) adding an offence, or (ii) removing, or modifying the description of, an offence added to the list by regulations under this paragraph, and (b) may make any other modifications to this section that appear to the Scottish Ministers to be necessary or expedient in consequence of provision modifying the list. (7) Regulations under subsection (6) are subject to the affirmative procedure.

.

• (4) In section 12 (orders authorising the use of special measures for vulnerable witnesses), after subsection (3), insert—

(3A) The court may not make an order under subsection (1)(b) above in relevant proceedings if it is required by section 22C or 22D to consider the special measure described by section 22B to be the most appropriate for the purpose of taking the child witness's evidence (or one of them if the court considers other special measures to be appropriate too).

.

• (5) After section 22A insert—