192.New sections 11B and 11C of the Children (Scotland) Act 1995 will be inserted by section 8 of the Children (Scotland) Act 2020 (when that section is brought into force). The new sections make provision requiring the court to consider the use of special measures to reduce distress in relation to certain vulnerable parties where distress may be caused by attending or participating in hearings in certain court proceedings. Those proceedings are civil proceedings in which the court is considering making an order under section 11(1) of the Children (Scotland) Act 1995.
193.Section 61 of this Act repeals section 8 of the 2020 Act. It also amends section 15(3)(a), which provides that where a party is considering the use of special measures to take the evidence of a vulnerable witness, or the court is considering making an order in this regard, the views of the witness are to be taken into account. Section 61(3)replaces the existing presumption that, where the witness is a child, the child is capable of forming a view if aged 12 or older with a new presumption that the child is capable of forming a view unless the contrary is shown.
194.Section 61(4) then provides for the provisions of the proposed new sections 11B and 11C of the Children (Scotland) Act 1995 to be inserted as new sections 22F and 22G of the 2004 Act instead. In doing so, it amends those provisions to expand the range of proceedings to which they apply so that they will apply, and special measures for vulnerable parties will be available, in all civil proceedings (other than relevant proceedings) and not just those relating to children. It makes additional provision, in new section 22F(6), for the court to have regard to the best interests of the party, and to take account of any views expressed by the party and, if the party is a child, the child’s parent. Where the party is a child, they are to be presumed to be of sufficient age and maturity to form a view unless the contrary is shown, and their view is to be given greater weight than that of their parent.
195.As is the case with section 7 of the 2020 Act, the changes being made by the other sections in this Part of the Act to the 2004 Act so that it applies in all civil proceedings mean that the provisions on vulnerable parties are better placed in the 2004 Act as they are no longer limited to proceedings relating to children.
Crown Application Vulnerable parties Section 61 – vulnerable parties