What’s coming up in Family Law in Scotland in 2024

United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024

On 16 January the 2024 the United Nations Convention on the Rights of the Child (Scotland) Bill was granted Royal Assent making it an Act of the Scottish Parliament. Most of the provisions within the Act should come into force on 16 July 2024.

The Act has not had an easy road with the original draft of the Bill being challenged at the UK Supreme Court in October 2021. It was held that parts of the Bill fell out with the legislative competence of the Scottish Parliament. The Bill had to be reconsidered and brought within the legislative competence of the Scottish Parliament – this is the version that has now been given Royal Assent.

This Act will apply only in Scotland and will allow for all legislation passed by the Scottish Parliament to be tested against the requirements of the United Nations Convention on the Rights of the Child (UNCRC). It unfortunately will not apply to Westminster statutes even if they deal with matters devolved to Scotland in a Scotland only context.

This will greatly reduce the impact of this new Act as currently the Children (Scotland) Act 1995 is outside its reach. It is possible that the Scottish Parliament could seek to codify all of the current child law statutes, including those passed at Westminster, and pass a new statute which would be affected by the UNCRC (Incorporation) Scotland Act 2024.

Whether this will be done is still to be seen.

Children (Care and Justice) (Scotland) Bill

The Children (Care and Justice) (Scotland) Bill is currently making its way through the Scottish Parliament. This Bill seeks to make changes relating to the Children’s Hearings System in Scotland amongst other things. One of the main changes that is proposed is to change the definition of a “child” in section 199 of the Children’s Hearings (Scotland) Act 2011.

Currently under s199 of the 2011 Act, a child is defined as “a person who is under 16 years of age”. Currently under the 2011 Act, 16 and 17 year olds can only be referred to the Children’s Reporter or have their order continued until they are 18, if they are already within the Children’s Hearing system. The Children (Care and Justice) (Scotland) Bill seeks to change the definition of a child from the age of 16 to the age of 18 which would allow any 16 or 17 year old to be referred to the Children’s Hearing system even if they have had no involvement previously.

The purposes is to protect vulnerable people who fall within this period who may be at risk of exploitation, abuse or harm due to their own behaviour or the behaviour of others.

At the time of writing the Bill is currently at Stage 2 (amendments) in the Scottish Parliament, and so it is not clear when this Bill may become law.

Changes to the Ordinary Cause Rules 1993

On 25 September 2023 the Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 came into force. This Act of Sederunt applies to all new Family cases in the Sheriff Court that have commenced on or after 25 September 2023 and that are defended. This means that we are seeing the first number of cases proceeding under these new rules.

The main changes to the Court rules are that there will be no Options Hearing or Continued Options Hearing assigned. Under the old rules an Options Hearing was the first procedural hearing at which a Sheriff would consider how the case was to proceed and whether it would require to go to a full evidential hearing (known as a Proof) or if there was a legal argument that meant it should go to a Debate instead. There would be a limited discussion about the case and the Sheriff would assign further procedure.

Under the new rules, the parties will have an Initial Case Management Hearing at which the parties must attend. The rules now provide a list of 16 points the parties must be able to address the Sheriff on which includes significantly detailed information regarding witnesses, productions and any matters which may be capable of agreement.

After the Initial Case Management, the Sheriff will fix a full Case Management Hearing before which the parties should have undertaken a pre-hearing meeting and lodge a Joint Minute of that meeting in advance of the full Case Management Hearing. The parties must also lodge a list and summary of witnesses in advance of the Full Case Management Hearing.

The parties must also be able to fully address the Sheriff on the same 16 points as the Initial Case Management Hearing.

It has still to be seen how each Court and Sheriff will interpret the new rules and implement them, however, parties must be aware when raising a new action that the work will be significantly “front loaded” in terms of the new rules as opposed to the previous court rules.

It appears that the requirement for each hearing will result in significantly longer time being assigned for each case which will result in fewer cases being able to assigned for each Court. It is likely that cases may take longer to progress through the Court, resulting in parties having to wait longer to reach a diet of Proof or conclusion of their case.

Will this encourage an Increased use of Arbitration, Mediation and Collaboration?

Given the above change of the Court rules, and the longer period of time it may take for cases to progress through the Court, parties may be more likely to consider alternatives to proceeding to Court such as Arbitration, Mediation or Collaboration. Each method would avoid the need for parties to enter into the Court process or be subject to the new Court rules referenced above. In actions relating to contact or residence, the Children (Scotland) Act 2020 provided that the Scottish Ministers would set up a scheme to assist parties to fund the cost of such alternative dispute resolution, however, that section of the 2020 Act has not yet come into force and there is no indication that it will come into force any time soon.

It is important for parties to consider all of their options as to how to proceed. Early consultation with a solicitor is crucial in deciding the best way forward for each individual party.