The court has the authority to issue orders on PRR in Scotland, taking the welfare of the child as its main concern so that orders are made in the child’s best interest. This essay will discuss the factors courts evaluate when determining the ‘welfare of the child’ and if the 2020 Act will improve the law.
In order to assess the welfare of the child the courts take a number of factors into account under Section 11(7) of the Children (Scotland) Act 1995, which states that “the welfare of the child is the court's top priority, and will not make any order unless it is better for the child to make one than none at all”. Further, taking the child’s maturity and age into account, and gives the child a chance to specify whether he wishes to express his views and if so, let him consider those views. Therefore, this section shows that when the court reaches a decision, it has to be based on the welfare of the child as it is the main concern. Lord MacDermott illustrates this in J v C.
The protection of the child is taken into account under section 11(7C) from things like abuse and harassment, which could lead to physical and mental injury or any risk in which the child may be abused. Case law that exemplifies this is J v M, where a father is accused of sexual abuse, although he was not charged, the court felt it was probable and not in the child’s best interest for the father to have contact with the child. This illustrates the importance of the child’s protection, whereby the child’s interests will come first. This means that the court can develop results that are flexible and responsive to the requirements of each child, therefore this approach recognizes the child’s fragility. However, this approach can also be seen as inadequate, which can cause ‘uncertainty’ This is because the judge is unaware of the exact facts as there can be contradictory evidence from the parents of their relationship history. Therefore, the court may forecast to what extent the parents can take care of their child.
Further, under section 11 (7D) the court will consider if it is acceptable to issue an order in cases where two or more people must collaborate with one another. The case Treasure v McGrath 2006 exemplifies this as the father was refused when applying for PRR as he did not have her best interest at heart. This demonstrates that an order can be refused if not required or does not serve a specific objective.
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In comparison to other jurisdictions, there is no ‘official checklist’ when assessing the welfare of the child. The 1995 Act was amended by the Family Law (Scotland) Act 2006, regarding the court to consider two types of concerns within the Act. Therefore, this generates an ‘unofficial’ checklist. This is because other important factors are not regarded when concluding the child’s welfare such as financial, genetic, and religious. However, case law such as M v M 2011 shows that the key factor is that the child is satisfied with the current condition, showing that courts are resistant to changing the state of affairs as the welfare of the child comes first. As there is no ‘official’ checklist in place, this makes the principal inadequate. Therefore, having a clear statutory structured checklist could improve the law.
The Children (Scotland) Act 2020 goal is to put in place a checklist of factors so that the court can follow these for cases regarding family law. The Act amends the current factors by repealing section 11(7-7E) of the 1995 Act and introducing section 1 11ZA, which keeps two present tests. The first is that the child’s welfare is paramount and whether it would be necessary to make an order, introducing provisions on harm that a delay in proceedings would cause to the child’s welfare under section 1 11ZA (2A). The checklist is under section 1 11ZA (3) (a-e), containing essential factors such as protection from abuse, harassment, and any risk which affects the child. Section 1 11ZB repeats the third principle of the present welfare test. This is a significant change by repealing the 1995 Act of age assumptions for youngsters expressing their opinion, but keeping the fact that the presumption is exclusively relevant for the grounds of instructing a solicitor.
The new amendments made by the Act will improve the law, to a slight extent. This is because the checklist is adjustable and not arranged with the goal of producing a constructive result for the child, due to the lack of essential factors taken into account. Further, there is not much change in the legislation since the court will decide what is in the child’s best interest. However, section 16 of the 2020 Act has improved the law as it contributes to the advancement of Scottish law due to being compatible with the UN Convention on the Rights of the Child, such as Articles 5 and 18. A case that exemplifies the importance of this is C v C 1988. Section 1 11ZA highlights the emphasis accorded to hearing children’s ideas by removing the age of 12 for age presumption in the 1995 Act, this improves the law as it allows courts to hear from children of all ages which also complies with Article 12 of UNCRC. However, when children are obliged to participate in family court, the Bill fails to go into any detail on how they would help them, for example, a child support worker. This shows that the 2020 Act only made a slight impact on the law.
In conclusion, it is evident that in determining the ‘welfare of the child’ the courts conclude their decision based on statutory and non-statutory grounds. The 2020 Act did improve the law to a slight extent, however, it would have improved the law further if it had introduced the changes in the 2019 Bill. Therefore, to improve the law, additional amendments must be constructed, by going into detail on how they would help the children and making the court more favorable for children so that it is less intimidating.
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