What changes will the Children (Scotland) Act 2020 make for children and young people? 

The Children (Scotland) Act 2020 was passed by the Scottish Parliament in August 2020. The changes have not yet been brought into force to give the Government, Local Authority Courts and Children’s Hearings time to prepare for the changes before they have to start delivering them. 

The new Act covers lots of different things. It:

  • brings the law into line with children’s rights under the United Nations Convention on the Rights of the Child (UNCRC) to ensure that children’s views are heard in family court cases and that the best interests of the children are at the centre of these cases; and 
  • gives more protection to victims of domestic abuse and their children. 

The main changes for children and young people are:

Children and young people will have more opportunity to give their views to court

The courts will have to take the starting point that all children are capable of giving their views no matter how old they are. All children who want to give their views must be given the chance to do so and in a way that they prefer, whether that is speaking to the Judge or other means of setting out their views. 

At the moment, there is a presumption that a child aged 12 and over is mature enough to give an opinion, however, by changing the law there is a clear signal that children of all ages have a right to be heard. Once they have been heard then the person making the decision has to take account of those views and also their age and maturity. 

Courts will explain their decisions to children

When a Judge or a Sheriff makes a decision as to where a child is to live (residence) or time that they have to spend with the other parent (contact), that decision has to be explained to the child in a way that they can understand. 

Every decision doesn’t have to be explained to the child, only major decisions like ones on living and contact arrangements 

Children will have support advocacy workers in family court actions

Advocacy workers will support and represent children when courts are deciding for example where they should live and what contact they should have with the other parent. This will take time to put in place that the Scottish Government now must start setting up these services for children who are giving their views to the court. 

Measures to keep children safe in contact centres

Child Contact Centres are places where children, parents and other people in children’s lives can meet. Contact Centres will have to follow rules which will be put in place. 

Other Matters 

  • Local authorities will have a legal duty to support, care experienced brothers and sisters relationship when they aren’t able to live together; 
  • A register of Child Welfare Reporters (who give a report to the court about a family situation) and Curator ad litems (who can be appointed by the court to represent a child’s interest) is to be set up and rules on how Child Welfare Reporters and Curator ad litems should carry out their duties;
  • Courts will also have to investigate the reason that contact arrangements are not working and give the child an opportunity of giving their views; 
  • Other changes include rules to avoid legal proceedings taking too long where this would affect a child’s welfare and new measures to assist vulnerable witnesses and parties in court actions. 

More information

WJM Partner Tom Quail is here to help with any of your queries about the Children (Scotland) Act 2020, or other family law matters. Get in touch on 0141 248 3434 or email tlq@wjm.co.uk

Pre and Post Nuptial Agreements

Unfortunately, one in two marriages fail. There are consequences for a family business or for a wealthy individual whose wealth has been built up pre marriage or through inheritance. 

On divorce/separation, the default position of sharing matrimonial property is a 50/50 split. If you can establish that a particular asset has been gifted or inherited, it will not be included for sharing. However, if you cannot prove that, it will then be shared. You might be able to come up with an argument why it should not be shared 50/50. However, it is for you to prove, not for your spouse to disprove. Your argument might be successful – it might not – it will however cost you – the legal costs of putting forward the argument could be significant. 

In relation to shares in a family business, if they come into existence during the marriage by restructuring, they may have to be shared with the other spouse. 

Separation or divorce can have significant financial consequences, not only for the individual in the family business but the family business itself. Shares in the family business cannot be split or shared. Funding a large capital payment through the family business is often the only option. This can impact on the family business. 

Protecting the family business and acquired wealth from the consequences of divorce can be achieved by putting in place a Pre-Nuptial Agreement prior to marriage or a Post-Nuptial Agreement after marriage. A Pre or Post Nuptial Agreement can set out financial provision on separation or ring-fence/protect pre marriage or post marriage assets.

Are Pre and Post Nuptial Agreement binding?

In short, yes. In Scotland, if the agreement is properly set out and dealt with fairly then Scottish courts are comfortable with couples reaching an agreement and enforcing that agreement. 

In Scotland, financial agreements, if not fair and reasonable, can be challenged up until divorce. Pre and Post Nuptial Agreements fall into that category. 

Important things to consider

  • The agreement, if pre-nuptial, should be signed not later than a few weeks prior to the wedding. 
  • Both parties should receive independent legal advice
  • Full disclosure of finances is important to identify what the couple are bringing into the marriage. 
  • An agreement, unlike no agreement, provides certainty
  • Pre and Post Nuptial Agreements protect not only the individual owner of a family business, but the family business.

In England and Wales, Pre and Post Nuptial Agreements are not automatically binding. The position remains in England and Wales that it is the court, not the parties, who will dictate what happens to a couple’s assets following a divorce. 

However, the English courts will not simply tear up the Pre-Nuptial Agreement and start from scratch. Instead, Judges in England will tweak the agreement and bring it within the boundaries of what they consider to be fair. This might mean that a lump sum payment in terms of the Pre-Nuptial Agreement will be increased or another provision may be ordered in addition to that set out in the agreement. 

“Separation or divorce can have significant financial consequences, not only for the individual in the family business but the family business itself.”

Tom Quail, Partner, WJM

In a situation where you are advising a wealthy couple who have assets both north and north of the border, then it would be worthwhile, subject to expense, of having Pre-Nuptial Agreements prepared by both Scottish and English lawyers. 

The reasons for having Pre and Post Nuptial Agreements have evolved. They are no longer viewed as being to ring fence pre-marital assets from a new spouse.

Many family businesses now have a policy in place that the owners of the business should have Pre and Post Nuptial Agreements as part of the overall family business planning, particularly in relation to the restructuring of the business, enabling it to change in response to market demands. It is now very much viewed as part of family business governance in ensuring that the family business, as it evolves to adapt to market changes, is also able to continue as a family business and that ownership is passed to the next generation. 

More information

For further information on Pre and Post Nuptial Agreements, please contact WJM Partner Tom Quail on 0141 248 3434 or email tlq@wjm.co.uk 

Get in touch – call us on 03333 661 274