The Children (Scotland) Act 2020 amends the Children (Scotland) Act 1995. What amendments has the new 2020 Act made?

1. Childrenโ€™s Voices: Any Age, Any Suitable Way

Old rule (1995 Act): Children aged 12 and older were presumed mature enough to express views in court, younger children often overlooked. However, in practice in Aberdeen and North East Scotland children as young as 6 years old have had the opportunity to have their opinion heard by way of a form F9 (form sent to child’s school) or a Child Welfare Reporter. XK Solicitors have dealt with numerous cases where younger children have provided their opinion as evidence in court.

New (2020 Act): All childrenโ€”regardless of ageโ€”should be given the opportunity to have their views heard in a way that works for them. This might include speaking to the Sheriff or a child welfare reporter, or using creative methods like drawing, videos, letters, play therapy, or other formats chosen by the child. If the child doesn’t indicate a preference, the court will determine the method. The court must respect a child’s wish not to participate too, and decide how much weight to give their views based on age and maturity. The older the child, the more weight the sheriff will give the opinion in make their decision.

2. Abuse Risk: Stronger Protections Built In.

Old (1995 Act) rule: Courts did consider safety, but not with express duties.

New (2020 Act) rule: Now the court must explicitly assess:

  • The risk or reality of abuse (physical, emotional, domestic) affecting the child.
  • Whether the person responsible for the risk of abuse can actually care for the child safely.
  • How an order could affect the child’s well-being if someone with abusive behaviour is involved.

These mandatory safeguarding considerations are now central to any decisions about where a child lives, contact arrangements, or PRRs.

3. Delay: Court Must Now Act with Purpose and Speed.

Old (1995 Act) rule: No formal duty to manage delays. Although delay was usually considered.

New (2020 Act) rule: Courts must consider the impact on a child’s welfare of any delay in resolving cases. Long waits can harm children, so courts have to avoid them wherever possible.

4. Alternative Dispute Resolution (ADR): Encouraged, Even Funded.

Old (1995 Act) rule: Courts were default places to resolve disputes.

New (2020 Act) rule: The government is now required to promote and fund ADR, such as mediation, arbitration, and collaboration. The aim is to resolve family disputes outside court when possible, reducing stress and conflict.

5. Regulation: Child Welfare Reporters & Contact Centres

Old 1995 Act: These processes lacked formal standards.

New 2020 Act: Introduces statutory regulation for:

  • Child Welfare Reporters and Curators ad Litem.
  • Child contact centres, where exchanges or supervised visits take place.

6. Duty to investigate Non-Compliance with section 11 Orders (Failure to Obtemper).

Presently, if a party fails to comply with an order made under Section 11 of the Children (Scotland) Act 1995 – for example, an order regulating where a child should live or the level of contact with the non-resident parent, the person in whose favour the order was granted can initiate enforcement proceedings.

This is usually done by asking the court to hold the non-compliant party in contempt of court. In civil proceedings, contempt carries a maximum penalty of three monthsโ€™ imprisonment and/or a fine of up to ยฃ2,500. In practice, however, courts have tended to give defaulting parties repeated opportunities to comply, often resulting in little more than judicial warnings rather than meaningful sanctions.

The Children (Scotland) Act 2020 makes an important change. Where the court accepts that a Section 11 order has not been followed, the court now has a duty to investigate the reasons for the breach. Crucially, the court must also seek the childโ€™s views before deciding whether to:

  • hold the non-compliant party in contempt of court; and/or
  • vary or recall the existing order.

This reform reflects a shift towards greater judicial responsibility in ensuring Section 11 orders are respected and that the childโ€™s welfare and views are at the centre of the process. Previously, there were circumstances where one party might be in possession of a legal aid certificate, and would repeatedly ignore the s.11 court Orders without any real consequence (other than warnings from sheriffs). The other paying parent would be financially drained, and in some cases might not be able to continue defending their child’s rights. This new Act should assist with this issue.

Summary Table

Area1995 Act2020 Reform Highlights
Childโ€™s ViewsPresumption at age 12+ (although in practice children under 12 were previously given an opportunity to provide an opinion).All children given voice; age-neutral and format-flexible.
Abuse ConsiderationsImplicit concern.Statutory duty to assess abuse and safety.
Case DelaysNo express duty.Courts must consider impact of delays on welfare.
Dispute ResolutionCourt-centric.ADR encouraged and funded.
Procedural RegulationInformal or variable.Formal regulation planned for reporters & contact centres.
Failure to ObtemperUp to sheriff.Duty to investigate.

Why These Updates Matter

These changes significantly modernise Scots family law by:

  • Upholding children’s rights in court and decision-making.
  • Embedding safety as a legal priority.
  • Speeding up family justice to prevent delay-related harm.
  • Promoting less adversarial resolution of disputes.
  • Bringing oversight and professional standards to key services.

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