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Children (Scotland) Act 2020

Detailed provisions

Duty to consider child’s best interests when allowing access to information

70.Section 18 of the Act inserts section 11E into the 1995 Act, which provides that when the court has to decide whether a person should have access to anything in which private information relating to a child is recorded, it must regard the best interests of that child as a primary consideration.

71.This provision articulates in primary legislation the legal requirement which the court is subject to, as set out in relevant UK Supreme Court cases. See for example ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent).(3)

72.In making the decision, he court must alsogive the child an opportunity to express their views in a manner that the child prefers or, in certain circumstances, a suitable manner. This provision on taking the views of the child is in alignment with other provision on this subject elsewhere in the Act. The court must have regard to any views expressed, so the views should inform the court’s decision. However, the court may depart from the views of the child if it is in the best interests of the child to do so.

73.The scope of the provision is limited to situations where the court is considering making an order under section 11(1) of the 1995 Act. It is further limited by the fact that it only applies where the information which is recorded is private, although this is widely defined to mean information in which the child could have a reasonable expectation of privacy

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Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.


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