Court actions involving children can be stressful for everyone involved; particularly for parents seeking to raise court proceedings to gain contact with their children or obtain a residence order. Equally, it can be stressful for parents who are opposing these orders. Likewise, the law and the court recognise that such proceedings can be stressful and daunting for the children involved. Whilst a degree of separation is necessary for parents and caregivers to navigate suitable arrangements for the children without necessarily involving children in proceedings, there are circumstances whereby the court has to consider what is in the best interests of the child, as should not be made without first seeking their views wherever possible and feasible.
The Law
There are two pieces of legislation that are relevant in Scotland to a child’s views and how these are, and should be, obtained in court proceedings:
- The Children (Scotland) Act 1995; and
- The Children (Scotland) Act 2020 (which amended the Children (Scotland) Act 1995).
Importantly, what these laws set out is the rule that a child should be afforded the opportunity to have their views expressed in proceedings if they are capable of doing so. But, what does it mean to say that they are capable of doing so? The previous default position was that a child of 12 years of age or older had reached maturity to be capable of providing a view in proceedings. This is no longer the case and court has to have regard to the ability and means by which a child can express a view.
The Children (Scotland) Act 2020 changed this position and afforded courts with a wider discretion when considering children’s views by removing the default age presumption, and merely providing that the court is to have regard to the child’s age and maturity. This means that the presumption now is that any child is capable of forming a view unless proven otherwise. Therefore, if one of the parties to the action in court (e.g. mum or dad) considers that the child is too young to understand the proceedings or provide a view because they are only four years old, then they are to put forward that argument for the court’s consideration.
How are a child’s views obtained?
There are many formats in which the court may seek to obtain a child’s view. The 2020 Act encourages children to express their views in whatever manner they prefer. Ordinarily however, the two main methods that are preferred by the courts are by way of a Form F9 or the appointment of a Child Welfare Reporter.
Form F9
A Form F9 is a court form which is provided to the child with a covering letter explaining what the court’s job is to do (while not going into detail on any particulars), that the court is wanting to consider their views, and outlines the questions in a child-friendly and simple format for the child to answer. The form is designed with colour patterns in an attempt to be more engaging for children.
Courts promote the completion of the Form F9 by children in a neutral setting. In many cases, the Form F9 might be sent to the child’s school to be completed in an environment where neither parent is present but rather, a trusted, independent and impartial adult (such as the child’s teacher). The purpose of doing so is to ensure that the child’s answers are unlikely to be influenced by either parent, and therefore, the court can attach more weight to the child’s views in reaching their decision.
Child Welfare Reporters
The other, and perhaps more traditional, option that the court follows in obtaining a child’s views is through the appointment of a Child Welfare Reporter. Generally, a Child Welfare Reporter is an individual with extensive experience in family law (usually a solicitor specialising in family law or a social worker). The Child Welfare Reporter can be ordered by the court to interview the parties involved (such as mum, dad, grandparents, other family members, professionals, friends or the children themselves) in an action to ascertain a wholistic picture of the situational dynamics, and what action (within the parameters of the question that the court is seeking to answer: e.g. Would it be best for the child to reside with mum or dad?) is in the best interests of the child/ren. Cost wise, a Child Welfare Report will carry significantly more expense than the completion of a Form F9. However, depending on the complexities and concerns raised by either party, the court may consider a Child Welfare Report to be more appropriate in the circumstances and in considering cost, will make orders in relation to which party is to bear the cost, or whether it should be split.
The Child Welfare Reporter after interviewing the parties requested by the court, will then prepare a Child Welfare Report which will be lodged with the sheriff clerk and later disseminated to parties and their solicitors. It is this report that the court will consider in making its orders.
How our firm can help
As Family Law Solicitors, our firm regularly represents clients in actions raised under the Children (Scotland) Act 1995 in various courts across Scotland. Should you be already involved in proceedings or are looking for advice and assistance on raising proceedings, our firm will be able to assist, advise you on your options and the process, and guide you through the proceedings themselves. If you would like to book a consultation, please get in touch today.
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