Scotland’s Children Act Tells Family Judges To Explain Their Decisions

A bill designed to amplify children’s wishes and feelings in family cases, and offer more protections for child and adult victims from domestic abuse came into force in Scotland on 2 October, 2020.

The Scottish government’s website says the Children’s Act aims to do the following:

  • ensure the views of the child are heard in contact and residence cases;
  • further protect victims of domestic abuse and their children;
  • ensure the best interests of the child are at the centre of contact and residence cases and Children’s Hearings; and
  • further compliance with the United Nations Convention on the Rights of the Child (UNCRC) in family court cases.

Key measures in the Act enhance young children’s right to be heard in family cases and places more responsibility on child welfare professionals to incorporate the views of every adult who has parental responsibility for a child, including parents with children in care.

The new legislation ensures that verbal children of all ages are able to express their views in any way they feel most comfortable, and that decisions made by a judge which impact children are explained to them clearly, through the use of appropriate language.

Ash Denham, the Minister of Community Safety (SNP) said last week, “The presumption that a child aged 12 or over is mature enough to give their views has been replaced with a presumption that, subject to extremely limited exceptions, all children are capable of giving their views. In addition, under the bill, the courts will be required to provide children with an explanation of their decisions. The courts will also be required to seek the views of children if an order has not been complied with. Those are radical changes that will make the process more child friendly.”

Judges will be required to engage with children’s views about their cases, so that the courts can make more informed and honest decisions. The requirement to explain their decisions to the children that come before them has been added to ensure that children understand what has been decided on their behalf.

This Act is not groundbreaking, but it does acknowledge that decisions about children need their input in order to be able to truly understand their needs, and how best to protect and support them.

The Buzz

The latest child welfare items that should be right on your radar:

Family court reform programme – open event

Her Majesty’s Courts and Tribunals Service is launching its 4th annual public user event, with a conference dedicated to family court reforms.

The online event spans three days, with the final day focusing on an update for family court reforms which are part of a £1bn Programme to modernise the justice system.

Members of the public will be able to learn more about the reform programme and how it is addressing challenges arising from the COVID-19 pandemic.

The invitation says, “Each day will begin with an introduction from the deputy directors of each service area. Throughout the day there will be an opportunity for Q&A sessions, live demonstrations of online services, and much more.”

Attendees do not have to register for a full day, and can opt to select which sessions they would like to attend.

Registrants will be given a more detailed programme over the coming weeks and the chance to choose and book the sessions they would like to attend.

The family court session is scheduled for Thursday 5 November, and will be hosted through Microsoft Teams.

The event and all its sessions are free.

You can register for the event here.

Adoption orders for siblings whose parents deemed competent carers by judge

A senior judge has decided to make adoption orders for three siblings, even though he found the parents to be more than able to care for their children.

Justice Keehan made the order after concluding that the parents had lied to the court, social services and the children’s guardian, citing what he called the parents’ “extreme over-reaction to the involvement of professionals in their lives and those of their children, most especially social workers,” as grounds for removal.

In the judgment, Keehan also said, “The parents deeply love their children and the children love them. There is no question, and never has been, that the parents are more than able to meet the basic care needs of the children.”

The case centered around a bruise sustained by one of the children, who was almost three months old at the time. The bruise was located just above the baby’s right eyebrow, and the judge concluded that it had been inflicted by one of the parents.

There were allegations of domestic abuse between the parents and it was claimed that the baby sustained his injury during a domestic abuse incident, although the child was not intended to be a target of the abuse.

The judgment contains a detailed account of how the children were taken into care, the alleged lies the parents were found to have told and several incidents involving the parents, including an attempt at concealing the mother’s pregnancy with her third child.

This is a deeply concerning judgment, which highlights several misunderstandings within child protection investigations, which we outline here.

In the judgment, Keehan says, “the parents’ failure to engage with the local authority or with any professionals with whom they have had contact is wholly irrational and is not founded on any objectively reasonable grounds.”

This is very rarely the case. Families in the UK are now aware that involvement with social services can lead to the removal of their children on inappropriate grounds. So, quite understandably, parents are very frightened when there is intervention from the state.

That perception is entirely the government’s fault, for failing to ensure that these services are of the highest quality, and that people who run such services and provide support can engage effectively with parents.

The judgment also gives the impression that the parents were at fault for non-engagement, but it remains unclear whether the individuals involved with the family communicated with compassion and understanding. Training for this kind of work is poor, and given the sophisticated nature of the work, the training programmes should be far, far, more robust than they are.

Our judges need to be better trained all round too. There is a bizarre moment in the judgment where we learn that, despite the father being the main suspect for the baby’s injury, the judge overseeing this case initially ordered the local authority to put together a rehabilitation plan for the baby who was injured, to live with his father.

It is also difficult to conclude whether injuries of this nature are non-accidental, as research tells us pre-mobile babies are able to sustain bruising on their own. Judges are not trained to the right standards for this medical area, which sits at the forefront of medicine today. And there are not enough doctors around the country with the necessary level of expertise to make the right judgment calls on these injuries.

Of equal importance in this case is that the parents may have engaged in a domestically abuse relationship, which may well have put their children at risk. This issue should have been the focus of the case, and every effort made to find a way to help the parents, while keeping the children safe.

The fear the parents felt as a result of the way social services intervened was most likely the catalyst for the lies that followed, but to remove three children from parents without exhausting all avenues, or elevating the case to the best teams available to ensure the family’s wellbeing, is inexcusable.

You can read the judgment in full here.

Nightingale courts will be used to hear family cases

Welcome to another week.

Theatres and hotels around the country will be turned into makeshift courts to deal with the backlog of family cases made worse by the Coronavirus lockdown, the Ministry of Justice has confirmed.

The so-called Nightingale Courts, which take their name from the Nightingale hospitals set up by the government during the pandemic to support hospitals taking in COVID-19 patients, will open on 28 September in Salford, York, and Middlesborough.

The Nightingale hospitals were closed down after it was revealed that they had admitted very few patients to their wards.

Five more “pop-up courts” (our term), are due to be launched in Bristol, Chester, Cirencester, Liverpool and Winchester.

It is estimated that about half a million cases are still waiting to be heard in England and Wales.

The Hilton hotel in York and the Jury’s Inn in Middlesbrough have been listed to hear family cases.

The MOJ said the total number of pop-up courts now stood at 17, and offered 32 court rooms. Open sites are believed to be operating at 80% capacity, higher than the average court before lockdown.

The government said it would add more technology inside the temporary courts, and install plastic screens for cases which require a jury.

You can access the full list of pop-up courts here.

Normal Contact Rules For Birth Parents and Children in Care Apply During Lockdowns

As the government mulls over a nationwide lockdown after the number of COVID-19 cases spiked this week, we thought it might be helpful to remind our readers of the principles underlying child contact during lockdowns.

The government has made it clear in guidance that the normal rules around child contact and contact applications always apply during lockdown and local authorities should do whatever they can to ensure face to face contact is enabled where it is agreed or set down in a court order.

This policy was also confirmed in the first case of its kind, which looked at children’s right to contact while COVID-19 restrictions were being enforced.

Six months on, we have a much clearer idea of what can be done to prevent the spread of the virus and councils are uniquely positioned to provide “COVID safe” spaces in contact centers and meeting venues, so there is no excuse for failing to facilitate that contact.

The “business as usual” policy implemented by local authorities during the first lockdown is likely to continue on into future lockdowns, and ensures that resources and facilities are or should be, open and available to birth parents and their children.

UK Prime Minister Boris Johnson has now warned the country that a second wave of the virus is on its way, which could see a nationwide lockdown reimposed if cases continue to multiply.

The following resources below are intended to give parents all they need to work with councils in securing and protecting the contact they have with their children.