Being at the centre of a separation or divorce is a difficult experience for children, particularly if the split is acrimonious.

If a dispute arises about a child's care arrangements or other aspects of their welfare, that child can be called upon to give their views. Following recent changes in the law, and Scottish courts shifting their approach to give children more of a voice, family law specialist Lydia McLachlan answers common questions about how children play a role, and what can be done to minimise the negative impact of separation on them.

Will my child's views play a role in a court's decision?

Yes, more than likely. Family law in Scotland takes into consideration an international piece of legislation – the United Nations Convention on the Rights of the Child – or UNCRC – which requires, among other things, the court to put the child's best interests at the heart of decisions, and to give a child who is capable, the right to express their views, and to have them taken into account.

The current legislation in place – the Children (Scotland) Act 1995 - does consider the views of a child, but with some limitations. That is about to change, with the introduction of the Children (Scotland) Act 2020. Although not yet in force but expected to be later this year, this will bring in key changes including:

  • Children will be given the opportunity to express a view in the manner they prefer.
  • All children, regardless of age, are presumed to be capable of forming a view unless the contrary is shown.
  • Certain decisions made by the court must be explained to the child unless they are incapable of understanding the explanation, it wouldn't be in their best interests to do so, or the child's location is unknown.

What will my child be asked to express their views on?

This depends on the family situation or dispute and the decision(s) that the sheriff is being asked to make. For example, it could include:

  • asking a child where they wish to live;
  • how often they wish to see the parent they don’t live with;
  • whether they want to stay overnight with that parent; or
  • more specific issues, such as what school they want to attend.

The process and approach for questioning a child on these topics is highly skilled, in order to establish the reasons behind why they answer in a particular way and to ensure that the views being shared are their own and not a result of adult influence.

How are their views collected?

Each child is different so what's best for one may differ from the next. There are several main options:

  • A Form F9, which provides the child – typically of school age - with the opportunity to share their views in writing. Although there are no set rules about where it is filled out, it's often sent to school, to avoid children being influenced by either parent when completing the form.
  • A child welfare reporter (an independent lawyer experienced in child law) is appointed. They are given clear direction from the sheriff who to speak to, and what to ask the child about.
  • A mediator with experience of speaking to children (aged 10+) is appointed to report on the child's views. (Avenue in Aberdeen, Aberdeenshire and Moray offers this as part of its Consulting Children service.)
  • A psychologist is appointed – often, although not exclusively, when mental health issues are involved or allegations of abuse. It's unlikely to be the case that a child has underlying psychological problems if a psychologist becomes involved; rather their surroundings or behaviour they have witnessed have had an adverse impact.
  • The sheriff can speak to the child to obtain their views.
  • A curator ad litem is appointed – an individual who will represent the child's best interests.
  • A child can instruct their own lawyer.

The latter option is rare and options one and two are the most common.

How can I minimise any negative impact on my child during the separation process?

The way parents behave and manage separation or divorce will have a direct and lasting impact upon their children, so it's incredibly important to shield them from conflict and to avoid them being present or within earshot when having conversations about your situation, whether that's with friends, family or an official meeting with your lawyer.

It's a difficult enough experience for an adult – so imagine how distressing and confusing it can be for a child.

For those considering or going through a separation, a good first step is to attend a Parenting Apart session through Avenue.

It's worth remembering too that court is not the only solution if a dispute arises; there are other options such as mediation and Collaboration to consider, which are likely to reduce the potential for negative outcomes for the children involved.

This article originally appeared in the Press and Journal.


Lydia McLachlan

Senior Associate