INTRODUCTION

With the UK having ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1991, policy-makers in Scotland have sought to ensure that domestic family law meets the UNCRC requirements. The UNCRC was much referenced when forming the primary legislation for family law, the Children (Scotland) Act 1995 (1995 Act). The UNCRC has become even more important in current family law reforms, as the First Minister of Scotland committed to incorporating the UNCRC into domestic law by the end of the 2021 Parliamentary session. Children's participation rights in family law in Scotland have been continuously influenced by the UNCRC for several decades.

Beyond the UNCRC, Scottish law must be compatible with the European Convention on Human Rights (ECHR). Its provisions and subsequent legal judgments by the European Court on Human Rights therefore are relevant to Scottish law on children's participation and parental responsibilities.

Human rights treaties thus strongly frame children's participation rights in family law in Scotland. However, existing research and recent consultations suggest that implementation is poor, with a lack of consistency across courts and children often reporting dissatisfaction. These issues are subject to current family law reform, in the Children (Scotland) Act 2020 passed during the writing of this chapter. Both the evidence and the proposed changes are discussed below.

Scotland has a small population of 5,438,000, which is 8.2% of the UK population. Its population is ageing, with only 17% of children aged 0–15 in 2018. It is estimated that at least one third of children currently will experience parental separation at some point during their childhood. Official court statistics show that there were 2,416 parental responsibilities and rights cases initiated in civil courts in 2017 – 2018, which was a small rise of 2% from over a decade earlier. More generally, the Scottish Civil Justice Survey found that 1% of adults reported a civil law problem related to child contact, residence or maintenance in 2017 – 2018. Police recorded 230 cases of child abduction in 2016 – 2017.

This chapter reviews the current legal context for children's participation rights when there are disputes about parental responsibilities and rights, under section 11 of the 1995 Act. It then considers contested court cases, usually concerning child contact and involving allegations of domestic abuse.