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I. Introduction
Acknowledgements
The Scottish Executive would like to thank all those who responded to the consultation paper Consultation on The Council of Europe Convention on Contact concerning Children. The responses to this consultation will help to inform the Scottish Executive's position as to the merits of UK ratification of the Convention on Scotland's behalf.
II. Responses to the consultation
In February 2005 the Scottish Executive published a consultation on the Council of Europe Convention on Contact concerning Children, which closed on 16 May 2005.
The consultation document was published on the Scottish Executive website, at the following address http://www.scotland.gov.uk/consultations/justice/ceccc-00.asp and in addition a further 60 copies were also sent out. The purpose of the consultation process was to obtain views on whether consultees thought that the Convention should be ratified by the UK Government on Scotland's behalf, and to obtain views on the following key questions
- How does the Contact Convention fit in with domestic legislation?
- How does the Contact Convention fit in with other international instruments?
- If ratified, would the Contact Convention enhance the existing law and offer added benefits? If so, what would the benefits be?
- How do you think parents can be informed of the importance of establishing and maintaining regular contact with their child?
- Are there any potential drawbacks to ratifying the Convention?
Except where confidentiality has been requested, the individual responses are available to the public in the Scottish Executive Library, K-spur Saughton House, Broomhouse Drive, Edinburgh EH11 3XD, tel 0131-244-4556.
III. The purpose of this report
This report provides a summary and analysis of the written responses received by the Scottish Executive on the questions set out in the consultation paper. The aim of this report is to provide a numerical summary of the responses received to each question and to identify, without attributing them to individual respondents, some of the main issues raised. Readers who are not familiar with the consultation document may wish to refer to it to see details of the proposals, for those questions which are not self-explanatory.
13 responses in total were received to the consultation process. 2 responses were from private individuals, 1 was from an advocate, 1 was from a solicitor and 1 was from a judge. 3 charitable organisations responded, 1 local authority, and 2 law firms. 2 police organisations also responded to this consultation process.
4 of the responses commented directly on all key questions posed by the consultation, 6 responded to one or some of the questions, and 3 responded to the key topics more generally and made other comments about the Contact Convention.
http://www.scotland.gov.uk/consultations/justice/ceccc-11.asp
IV. Responses to the questions posed in the consultation
Question 1. How does the Contact Convention fit in with domestic legislation?
13 responses were received to this question. 3 respondents commented that the Contact Convention fitted broadly with domestic legislation.
General principles in the preamble to the Contact Convention
2 respondents commented that in paragraph 5 of the preamble to the Convention, the best interests of the child are referred to as ' a primary consideration' whereas in Scots law the best interests, or welfare, of the child are regarded as being the primary or paramount consideration.
1 respondent commented that whilst it was agreed that children and parents have the right to obtain and maintain regular contact, that this right should be restricted and excluded where it is in the child's best interests.
Article 2
1 respondent commented that the definition of contact enshrined in the Convention is broadly consistent with Scots law which already recognises direct contact.
However, 3 respondents commented that in Scots law 'a child' is defined as meaning a person under the age of sixteen years as per the Children (Scotland) Act 1995, whereas the Convention refers to a child being a person under the age of 18 years. 1 of these 3 respondents went on to say that this provision is probably acceptable assuming that the provision was drafted in the knowledge that some contracting states do not make orders for children over 16 years of age.
2 respondents commented that the definition of 'parent' would have to be further considered. 1 of these respondents commented that the Convention might clash with the current Scottish Family Law Bill in terms of the categories of persons who are encouraged to have contact or have contact rights conferred on them.
Article 4
3 respondents supported the notion of considering indirect contact through other means of communication, where direct contact was not considered appropriate.
Article 5
1 respondent commented that this article might strengthen the position of grandparents in Scotland in being considered for conferral of rights and responsibilities in respect of a child and contact with that child.
1 respondent commented that where Article 5(2) would permit States parties to extend this provision to others, there may be a concern that other contracting states may not enforce a contact order under the Convention if the other state does not recognise the applicant non-parent in its own domestic law.
Article 6
4 respondents stressed the importance of the principle of seeking the child's views, and this was in line with existing provisions of Scots law in The Children (Scotland) Act 1995.
Article 7
2 respondents wondered how this article would operate in reality where judicial authorities would be obliged to take all appropriate measures to assist in resolving disputes concerning contact. 1 of these respondents wondered in particular if this judicial authority responsibility would rest with the state of habitual residence or with the state addressed.
Article 8
1 respondent commented that Article 8 of the Convention seemed to go beyond registration in the Books of Council and Session because it implies a degree of judicial scrutiny.
2 respondents asked questions on how the Convention would treat procedures such as the registration of Minutes of Agreement in the Books of Council and Session for preservation and execution, and how/whether such agreements would be recognised and enforced in other jurisdictions.
A third respondent commented that Article 8 does not seem to reflect the principle of section 11 of the Children (Scotland) Act 1995 which states that the court must not make an order unless it considers that it would be better for the welfare of the child concerned to make an order, rather than not making one at all. The same respondent commented that Article 8 of the Convention seems to have been drafted on the basis of a contrary assumption.
Article 10
1 respondent commented that there would seem to be no problem in promoting the use of safeguards and guarantees concerning contact.
3 respondents commented that in respect of safeguards and guarantees in the Convention, it was difficult to see how they could be effectively implemented and upheld. One respondent commented that it might be difficult for a court to put anything in place which would guarantee that contact would work successfully and would want to see this particular expression removed from the Convention altogether. Another respondent wanted to know how guarantees would operate. Two respondents had concerns that as a safeguard, there would be an obligation upon the person having contact with the child to present himself/herself before a competent body, which might be a police station in this situation, and that in both their views that this would not be an appropriate place for this purpose.
4 respondents commented that Article 10 of the Convention appeared to put sanctions in place for parents who refuse to respect access orders. One respondent commented such a provision would represent a welcome addition to domestic law as it would benefit both the child and the parent involved. Two respondents commented that the Convention sought to impose a criminal financial penalty on non-compliance with a contact order and wondered if there was a precedent for this in Scots law. Two respondents wondered which authority would have jurisdiction over a breach of an order in Scotland if the Convention were to come into force.
Article 15
1 respondent commented that it was necessary that domestic orders are not reviewed, as per Article 15, but that this provision seems reasonable as it also allows details of such a contact order to be adapted.
Article 16
1 respondent commented that the duty imposed on authorities to "ensure the child's immediate return" was not possible, where only best endeavours can be used but where no contracting state can give guarantees if a parent chooses to breach the order.
Question 2. How does the Contact Convention fit in with other international instruments?
4 responses were received to this question.
1 respondent commented that there might be a risk of confusion with the number of other instruments of direct application and more general commitment, for example - the Brussels II bis Regulation and the 1980 Hague Child Abduction Convention, and also more broadly with the 1996 Hague Convention on the Protection of Children and the UN Convention on the Rights of the Child. Another respondent commented that there was a degree of uncertainty around unnecessary duplication of certain elements of the 1980 Hague Child Abduction Convention.
1 respondent commented that the Convention adequately recognises the existing obligations of the UK under the Hague Convention and the UN Convention on the Rights of the Child. 1 respondent also felt that the Convention added to the existing international instruments and upheld various relevant articles relating to contacts and the opinions of the child contained in the 1989 UN Convention on the Rights of the Child.
Question 3. If ratified, would the Contact Convention enhance the existing law and offer added benefits? If so, what would the benefits be?
8 responses were received to this question.
1 respondent re-iterated their response to question 1 on Article 10 in that such a provision would represent a welcome addition to domestic law as it would benefit both the child and the parent involved.
1 respondent thought that a benefit of the Convention would be a move towards a more shared notion of the 'welfare of the child' and that this would benefit UK residents seeking contact with children in other contracting states.
1 respondent commented that whilst in some ways the Convention might represent a retrograde step for Scots law, concerning the primary consideration of the welfare of the child, amongst other issues; this instrument could be useful in providing uniformity to other contracting states in applying the same principles.
2 respondents commented that the Convention would essentially be a good practice guide. 1 of them added that if ratified, the Convention could send a positive signal to other contracting states in promoting better co-operation.
1 respondent commented that the Convention would enhance both the criminal and civil law in this area in Scotland as a best practice guide and a mechanism for streamlining the law in this area for contracting states in Europe.
1 respondent commented that the Convention would enhance the existing law in that it would facilitate and encourage cross-border contact between children, their parents and other appropriate adults.
1 respondent's view was that the Article 10 provisions for safeguards and guarantees would provide the court with more power to deal with parents who deliberately ignore contact orders.
1 respondent felt that the duties imposed on the central authority at Article 12 would be of importance in facilitating contact.
Question 4. How do you think parents can be informed of the importance of establishing and maintaining regular contact with their child?
7 responses were received to this question.
2 respondents commented that advertising on television might be a good way of informing parents and the adult population in general. Both respondents pointed to the success of recent public awareness campaigns on drink driving, smoking and domestic violence.
2 respondents commented that public awareness campaigns could be effective where they demonstrated how a child feels where his/her parents are involved in a dispute relating to contact with the child.
1 respondent commented that any information would have to be tactfully and sensitively provided, and that this information might be usefully disseminated when a birth is registered, in schools or when civil actions are initiated relating to children or to a marriage where there are children involved.
1 respondent commented that literature on this subject area should be made available for use by family law practitioners, social workers, courts and voluntary organisations.
2 respondents commented that the profile of child contact has already recently been raised with the public profile of pressure groups such as 'Fathers 4 Justice' and 'Fathers' Rights.'
1 respondent noted that the Scottish Executive has demonstrated efficiency in promoting key issues in high profile media campaigns and that this expertise could be used in targeting all potential stakeholders including children themselves.
Question 5. Are there any potential drawbacks to ratifying the Convention?
8 responses were received to this question.
1 respondent commented that family law is becoming an increasingly complex area of law and therefore ratification of this Convention would add an additional layer of complexity.
3 respondents commented that if the Convention were ratified, this additional layer of international law would have financial and other resource implications for its implementation. One of these respondents suggested that child protection agencies and citizens advice bureaux would face additional costs in redrafting and reprinting existing printed information, and that additional expenses would be incurred in consulting directly with children.
1 respondent commented that there appears to be a degree of overlap with the 1980 Hague Child Abduction Convention, in particular in terms of wrongful retention of a child, but that it is doubtful as to the necessity of a further layer of legislation which deals with an identical situation.
1 respondent commented that in their view, there would be unresolved issues around the breach of contact orders and associated jurisdiction issues which would need to be addressed if the Convention were ratified.
1 respondent commented that there might be problems with 'supervised contact' where 'unsupervised contact' is not favoured by the court, at Article 4. In their view, where a court does not favour unsupervised contact, the court should have the right to refuse to grant any degree of contact as 'supervised contact' standards set by social work agencies are not necessarily met by often unsuitably resourced Contact Centres.
1 respondent commented that the Convention would not enhance existing law and might prove detrimental to adults, children and young people experiencing domestic abuse as the Convention did not appear to mention domestic abuse or the safety considerations of the child and the non-abusing parent. 1 respondent commented that the presence of domestic violence in a child's life should be given proper consideration by the courts when considering applications for contact orders.
1 respondent had concerns that where Article 7 of the Convention places a duty on courts to "encourage people to make amicable settlements," there is no acknowledgement in the text that this would be inappropriate where domestic abuse is also an issue. The same respondent commented that there would be similar concerns around Article 8.
2 respondents registered their concerns about Article 15, where a Scottish court would not be able to review a contact order decision made in another jurisdiction, as to its substance, in any circumstances.
Scottish Executive Justice Department
30 June 2005