What to expect if you are currently going through a case concerning your child. Jamie Foulis talks through the level of involvement your child will likely have throughout the process.
05 January 2022
If you find yourself involved in a situation where a court is being asked to make decisions about your children such as where they should live; when they should see each of their parents; or what school they should go to, it’s normal to worry about what part your children will have to play in the process.
A child’s level of involvement in court cases has always been a topic of discussion in child law. Parents will have differing opinions. For example, whilst some want to make sure that their children are given a chance to have their say, others worry about the stress the process might cause them.
Generally though, parents should expect that most children of school age will be given a chance to be involved and have their say before decisions that will ultimately affect them are made.
The Children (Scotland) Act 1995 says that a court requires to consider the age and maturity of a child that it is being asked to make orders about and, having regard to those factors, it must give the child an opportunity to indicate whether they wish to express a view on the orders being sought as far as it is “practicable” to do so. Those views should be taken into account by the court, but how much weight they carry will depend upon the child’s age and maturity.
It has not always been easy to be clear about when it wouldn’t be “practicable” to give a child a chance to have their say. However, recent case law explained that if children are old and mature enough to express a view and want to do so, then they must be given a chance to make their voice heard unless there are serious concerns that it would be harmful to their welfare to do so.
In theory the child could be asked what they think at every point at which the court is being asked to make a decision that affects them, and the appeal courts have made it clear that a Sheriff or Judge must bear in mind the duty to offer a child the chance to have their say even if neither parent is asking for that to happen.
It is therefore possible that your child may be asked for their views on several occasions during a case. In reality, a Sheriff or Judge might want to avoid causing a child unnecessary stress or pressure by asking them what they think over and over again, but you can expect the issue of what your child thinks and whether they want to talk to someone about that to be raised by the court on a number of occasions during your case.
The court has a number of tools at its disposal to give a child an opportunity to give their thoughts. One is to send out a form (“Form F9”) to complete. This can be sent to their home, but sometimes a Sheriff will prefer for it to be sent to the child’s school so that it can be completed with a teacher, as opposed to one of the parents involved in the case. The child is free to complete the form and return it to the court as they wish, but they don’t have to complete it if they don’t want to. Alternatively, a court can ask a Child Welfare Reporter - an independent person appointed by the court (usually a lawyer) -- to speak to the child in person and report back. Some Sheriffs will ask to speak to the child themselves, although that is much less common.
It is up to the Sheriff to what extent they tell the parties what the child has said. Sometimes they will provide a summary, rather than disclosing word for word what the child said.
In most instances, the court will discourage the parents themselves from asking the child about what they think. Often there is concern that this puts the child under pressure, and that what they say might be influenced by trying to keep their parent happy.
The court has to take any views that your child expresses into account, but that does not mean that the Sheriff has to follow them to the letter. The weight that the court will attach to any views that your child gives depends on what decision it is that the court is being asked to make and whether the child is old and mature enough to fully understand that decision and its consequences.
It's reasonable to expect that the court will explain why it is reaching a different decision from what the child would want, especially at the end of a case when a “final” decision is being made. Sometimes the court will make special arrangements for its decision to be explained to the child. Sheriffs have been known to write to the child, or ask a Child Welfare Reporter or other professional to discuss their decision with them and explain why it was made.
There are other, less common ways that a child can be involved in a case and have their views and position made clear to everyone involved in it. For example, if the court is particularly about a child involved in a case, then it can appoint a lawyer to act as a “Curator ad Litem” to the child. The Curator’s job is to represent the child’s interests in the case. The Curator can become part of the case if they feel that it is necessary to do so, and can argue for things on the child’s behalf that are different to what either parent is asking the court to do.
If a child is old and mature enough, they can also instruct their own lawyer to represent them in the case if they wish.
Changes to the Children (Scotland) Act are expected to come into force soon, and we expect they will emphasise the requirement to give children a voice in cases about them, and listen to what they have to say. The Scottish government has made clear its intention to bring the UN Convention on the Rights of the Child into law and has passed a bill to do so. When that comes into law, it will make it a legal requirement that children have a chance to participate in cases about them and that any actions taken are in their best interests.
In short, at the moment you should expect that your child will have a chance to have their say in court before any decisions are made to ensure their best interests are recognised.