The voice of the child: how are children heard in England and Scotland's family courts?

00:00:05 David Lee, Host

Hello and welcome to Podcasts by Brodies. I'm your host, David Lee, and in this episode we're looking at the different approaches of courts in England and Scotland when it comes to the voice of children in family law disputes.

I'm joined by two experts from either side of the border. Victoria Varty is senior associate at Brodies based in Edinburgh and an expert litigator in family law and Louisa Bestford is also a senior associate based in the Northeast of England with the legal firm Hay & Kilner and she is also an experienced family lawyer. Welcome to you both.

If I could start with you Victoria, Scotland recently incorporated the UN Convention on the Rights of the Child into law. When did that happen and can you tell us a little bit about the Convention and very broadly what its purpose is?

00:00:59 Victoria Varty, Senior Associate

It's very recent, there was a little bit of a battle through the courts to get the UNCRC into law, but most of the provisions came into force on the 16 July 2024. The UNCRC or the United Nations Convention on the Rights of the Child is an international treaty and it sets out the civil, political, economic, social, health and cultural rights of children in particular. It was adopted by the United Nations General Assembly in 1989 and has been ratified by 196 countries. It was ratified by the UK in 1991, and it's the most widely ratified human rights treaty in history. Its aim is to guarantee that all children, and for the Convention that's those under 18, have the protections and rights necessary for their healthy development and well-being. So, some of the key principles include things like non-discrimination, the best interests of the child, the right to life, and also respect for views of the child, which we're talking about. There are also specific rights such as the right to education, the right to play, the right to be protected from abuse and the right to express opinions and be heard in matters affecting.

So, what Scotland has done is by incorporating the UNCRC into its legal system, it's trying to provide a framework to ensure comprehensive protection and promotion of children's rights in Scotland. So, it's now unlawful for public authorities, which would include the Scottish Government, to act in an incompatible way with the UNCRC and children in Scotland have the ability to use the courts to enforce their rights, so it's a way of emphasising the importance of considering children's voice in all the decisions that are affecting them, so it builds on what we've done historically in Scottish family law.

00:02:57 David Lee, Host

Thanks very much indeed Victoria, and Louisa why is the Convention not been adopted in England and what does that mean in terms of the weight given to a child's voice in family disputes?

00:03:11 Louisa Bestford, Senior Associate - Hay & Kilner

Well, while it's certainly not been adopted into domestic law, it's concepts and provisions are consistent with our law to a large extent. I think if we look at ultimately what the priority is, it's to look at the best interests of the child, the law that underpins how we deal with family matters is the Children's Act. The Children's Act is dealt with rather than a prescriptive manner, it's dealt with within a framework but the expectation that underpins the overall system is that the paramount consideration of the court is a child's welfare. So, in order to consider that, there are a variety of different ways in which we will explore the child's voice, the child is expected to be heard where appropriate, and certainly wherever the child has their ascertainable wishes and feelings can be obtained. There are various approaches to that, but primarily it'll come through the agency Cafcass who assist us in this. The key point is that we focus in light of the child's age and understanding.

00:04:30 David Lee, Host

Thank you, Louisa. You touched a little bit there, but what specific criteria do the courts in England use to assess whether a child can form and express their own views?

00:04:43 Louisa Bestford, Senior Associate - Hay & Kilner

Under our system, there is no one-size-fits-all. We look at the child's age and maturity, we have a checklist, so it's a framework that the judge will consider, and he or she will consider it on the basis of advice from Cafcass - who are the family court advisers. When those recommendations are made, they will consider various matters, the first one being the ascertainable wishes and feelings of the child concerned when the court decide how they deal with matters this is based on the welfare checklist and the welfare checklist will initially consider the ascertainable wishes and feelings of the child concerned, but it's more holistic than a specific approach and a set of fixed questions. This will be set in context against other matters, such as a child's emotional and educational ability to understand certain concepts, the likely effect of any change in circumstance that may occur. Other things might be the risk associated with sharing that information that isn't specific to the welfare checklist, it looks at it in a more holistic way, in broader form, how capable the parents are of communicating things. These are all matters that Cafcass will consider. As I said, there is a check specific checklist that they will work against but every child is different, every family unique and it's simply not appropriate really to come up with a fixed list of things that we would deal with in a prescriptive way in generally, that's how Cafcass will operate.

00:06:44 David Lee, Host

Thanks very much indeed, Louisa. What about in Scotland, Victoria, are there similar criteria to assess whether a child can form and express their own views in a legal setting?

00:06:58 Victoria Varty, Senior Associate

So, I think listening to Louisa is interesting because we approach things in quite different fashions, but the underlying principles are the same. So, in Scotland, if we're talking today really about private law cases, so cases between parents, rather than involving children, rather than public bodies. Similar to the English Children Act, we have the Children Scotland Act 1995 and that deals with the court making orders about parental rights and responsibilities.

There are three underlying principles in terms of the decisions in terms of in respect of children. The first, the same as in England and Wales, is that the welfare of the child is the paramount consideration, and that's often referred to as the best interest test. The second is that the court shouldn't make an order unless it's better for the child and order is made than none so, what we call the principle of minimum intervention, courts don't interfere in family life unless it's required. Then the third principle, which the court has the decision is consideration of children's views and what the Act at the moment says that taking into account the child's age and maturity, the court shall, as far as practicable, give the child an opportunity to indicate whether they wish to express their views if they do wish so, give them an opportunity to express views and then have regard to such views as they may express. So, in Scotland, the criteria are really one of practicability, so if it's practicable, if the child is of sufficient age and maturity and they must be given an opportunity to express the views and those views given regard to.

As Louisa was saying, age and maturity and practicability and the current legislation provides that a child of 12 or more shall be presumed to be of sufficient age and maturity but as I think we'll perhaps go into discuss that that's been a kind of evolving area of law in Scotland over the last few years.

00:09:02 David Lee, Host

Thanks very much, Victoria. You’ve both talked there about children having their own voice, but what about additional support for children in the courts, who is available, Louisa, in England to help that child's voice be heard.

00:09:21 Louisa Bestford, Senior Associate - Hay & Kilner

It would be Cafcass that supported the children in doing this. Cafcass play an important role, they are there to safeguard and promote the welfare of the child, to give advice to the court about the application. Where appropriate, potentially make provision for the children to become involved which is probably more consistent with the extent to which the Convention may prefer the child to be involved, and that would potentially be involved in court proceedings, it would be exceptional, usually, if the child were of appropriate age and maturity and it was deemed appropriate for the child to be involved, they might become involved through a guardian and the guardian would appoint a solicitor to express the child's views.

It will be Cafcass who would be involved in dealing with the arrangements. Subject to the age of the children, they'll do direct work, they're invited by the court to prepare the report and directed to deal with certain matters, based on those specific directions, they will approach a child to understand the wishes and feelings but when they're doing that, it's not a case of asking straightforward question ‘what do you want?’ sometimes if it's a younger child, it might be more appropriate to deal with it in a certain setting that might be in the form of play. There are times when we'll do by way of having things like drawings, to speak more generally about what children want and that can bring the best out, it avoids emotional harm because children shouldn't be in the middle of conflict, that's probably one of the more significant reasons for the divergent to some extent away from having them heavily involved in these proceedings.

Cafcass play a role sensitive to the children's needs, recognising that they're not all going to be the same, it will depend on their personal experiences whether there have been safeguarding issues. All of that has to be taken into account and it's that's where we go with this child focused approach, being child centred, which is very important as overall throughout the work we do as practitioners, but also when matters are before the court.

00:12:00 David Lee, Host

Thanks very much, Louisa. What about in Scotland in terms of that representation, Victoria, what's the role of child welfare reporters?

00:12:10 Victoria Varty, Senior Associate

We have quite a different system in Scotland to south of the border. We don't have Cafcass. We don't have an organisation or independent organisation. The starting point in Scotland for taking children's views is by a form, supposedly a child-friendly form, although you might ask how child friendly is sending a form in any event, and it's known as the form F9 in sheriff court cases.

If a parent is looking for an order in respect of a child, then that form would be served on the child asking them if they want to express a view, and what those views might be. Often the form is sent to a neutral venue like a school to try and get someone like a teacher or someone independent to assist the child in the form. It was amended around 2019 to try and make it more child-friendly and they introduced emojis so children can tick smiley faces or sad faces in terms of how they feel about the form. I've heard anecdotally it was quite a battle to get those emoji faces onto the form because you wouldn't normally have pictures in legislation or in court forms, and so there was a bit of a battle and the story goes that it transpired that the criminal procedure they have in when there's prosecution for birds, for people who've been convicted of harming protected species, then they do have pictures of birds on these forms and apparently it was said, if we are prepared to protect our birds by having forms with their pictures to identify them then surely we can put little emojis for kids to tick on these forms, but in lots of cases it's recognised that there is not an appropriate way to take their views. There are young people who may complete a form and it might be upsetting or difficult, or there's lots of people who can't read, and it's not very accessible.

The court will offer a child welfare reporter in those types of cases to take children's views. Sometimes a child psychologist, so we might employ a child psychologist or there are some sheriff systems have court appointed advocacy workers to take views of children and although that's not something that's universal, the big difference in child welfare reporters compared to Cafcass, is that child welfare reporters are not specialists, or most of them are not specialised in doing that work. They're normally solicitors or Court of Session advocates who practice and have their own caseloads and do this alongside. I think there are changes afoot, but until very recently, they've not been trained in any way to play this role, which again might be surprising for the importance of the work they're doing and working with the children.

In very rare occasions you might have a judge speak directly with a child if they are in court or in a more informal setting, that's unusual. That has only happened once and there was a dad who sought a court order to take a child on holiday. I acted for the mum who was very clear the child didn't want to go, and the sheriff decided to speak to the child himself to find out what the child's views were and why he was expressing those views and so the child got brought to court. You can occasionally also have children instructing their own solicitor. I think Louisa was talking about how in England that would be done via a guardian. In Scotland, you can have situations where a curator ad litem is appointed who would be someone appointed by the court to stand in the shoes of the child and to represent the child. Or you can have children instructing their own solicitors if they want to seek orders or make representations and respective orders being made regarding them.

00:16:07 David Lee, Host

I was just going to pick up on the emoji point there Victoria, because is that an example of the courts trying to move to that more child focused and child centred approach because, as you say, most children will not want to print off and fill in a form or download and fill in a form. Do you think that is an evolution we will see more of?

00:16:42 Victoria Varty, Senior Associate

Absolutely. In 2019, when it came into force, it was the best that they could do in terms of moving the form forward at that point within the various constraints that they had at that stage. Since then, we've had Children's Scotland Act 2020 which very limited sections are enforced at the moment, but that's going to change quite radically how children can give their views in Scotland and some of the things Louisa was talking about before, like in the expression of views through play, it's what's anticipated in the in the 2020 Act. So, what the 2020 Act does is it removes the idea of being about practicability for taking children's reviews and replaced it with a capability test. Any child who can form and express a view should be heard, regardless of their chronological age, and that's more consistent again with the incorporation of the UNCRC.

The idea is that the method of children giving their views will be determined by the child more than by the court imposing a form, a child might want to speak to someone, so it might be appropriate for them to speak to child welfare reporter. The idea is that a less formal approach could be used, such as writing a letter, a drawing, as Louisa was mentioning, or play therapy or perhaps even producing a video for the court, which I think is quite interesting because that's how people communicate now by messages; voice notes, video messages and things like that. The idea is that these kinds of methods should be used, things that children are more familiar with. It'll be interesting to see how that develops because the intention and the idea is very creative and I think it's been welcomed by a lot of children charities and the views being expressed will be more genuine than ticking a form. It would be interesting to see how that will play out in practice and with the existing court processes, judges and sheriffs will manage to adapt processes to enable these kinds of more creative ways to come into play.

00:19:03 David Lee, Host

Louisa, do you see anything similar happening in England in terms of moving on to children's territory a little bit more and how they communicate with the court system?

00:19:16 Louisa Bestford, Senior Associate - Hay & Kilner

Absolutely. It was interesting hearing that Victoria because it built upon my understanding of what you do. In which case I do feel we're closer in terms of progression towards meeting what's intended by the UN Convention. At the minute we currently have a system, the Child Arrangements Programme Practice Direction. This has the purpose of embodying the sort of practicalities of how we reach a system where the child is communicating with the court and part of that may be the reporting by Cafcass in the ways I have previously spoke about, but it would potentially involve a child meeting with the judge on an informal basis in the presence of a guardian who may be a Cafcass officer and discussions would be held. A careful note would be kept of that and having discussed that with a judge, he expressed to me how important it is that that careful note is kept so it's circulated and there's no suggestion that matters discussed between them have been treated as evidence - that is very important. The purpose of it is for the child to feel involved in this process, and that investment may help in the longer term, when orders are made.

Another approach that has recently been in the press is the communication between the judge and the child by letter. So that's a different way of doing it without putting the child in this situation whereby they're part of the court process. Courts are very difficult places, if you mention a judge is not a natural environment for a child and that goes to keeping kids out of being involved in conflict, you know, by doing that by letter, that's a completely different way of doing it. You're communicating, the child has been heard, they've been listened to and that has all been taken on board and that's another way we do it. So, I think we're quite holistic in the various approaches we have to it, but it's very exploratory. It requires Cafcass involvement, we are lawyers and we'll do our best with understanding what's in a child's best interests but if we're doing our job, we need to accept that we have our limitations and actually we need to reach out to the correct specialists who can offer that guidance. So, that's where we are, and I do think that introducing that introduces some more parallel.

00:22:03 David Lee, Host

Thanks very much and I'll come back to you., Victoria, what age are children's opinions considered in in Scotland and why was that age agreed upon? What about a situation where a child's expressed wishes actually conflict with their best interests is assessed by the court?

00:22:29 Victoria Varty, Senior Associate

In terms of 1995 Act which is the piece of legislation were governed by currently, once a child reaches the age of 12, then they were traditionally viewed to be of sufficient age and maturity to express a view. I assume that was because at that point of the Act was brought in 1995, that was sort of seen as the point that children were mature enough, had clearer understanding of what might be involved in disputes between their parents. But even since then, it was regularly the case that younger children's views would be considered. I guess they just had a greater weight by the time they reached that sort of threshold of 12, but it was never a definitive cut off point.

I think it's always been the case that the weight they carry has been a bit of a continuum and we always advise clients that the weight of a 15-year-old's views will have much greater weight than what seven or eight or nine year old might be saying. Since the 1995 Act passed children's experience has changed a lot. I imagine the onset of the internet probably has something to do with that and children of much younger ages are more grown up than perhaps they were in those days. I say this as a teenager of the 90s, so suddenly sounding ancient - but I think what's happened is we started to take younger and younger views and this has evolved since the incorporation process and it's very clear now that the sheriffs are taking the views of much younger children than they would have previously. Child welfare reporters are being asked to take such views of maybe five-year-olds. I know somebody who had to speak to a child in nursery and that's really difficult task for a child welfare reporter to try and explain to a four-year-old or a five-year-old what they're there for.

The child doesn't have to give their views but they're being given an opportunity and there's also been a number of reported decisions of younger children giving views, particularly a recent child abduction case, where there was an eight-year-old girl objected to a return to her home country and Lady Carmichael decided that she was of a sufficient age, that her view ought to be taken into consideration and given considerable weight, and that was interestingly appealed and then held up on appeal. There's definitely been a trajectory to take the views younger children, 12 was the starting point but that that's moved considerably.

Your second question is a really interesting one because this is one that we sort of are grappling with a bit. In practice, I would say, now, is that we're getting all these views of younger and younger children, but then what? What do we do with them? Ultimately, as Louise and I both said, the welfare of the child is paramount, and the court's job is to decide what's in the best interest of child and it's never been the case, and it's still not the case that the views are determinative. The court must consider all the factors before it and deciding what's best for a child and will sometimes make an order that contradicts views that have been expressed. If they are in the view that's in the child's ultimate best interests. But again, it's that continuum that we were talking about. So, I think it's unlikely a court would make an order for a 14 or a 15 year old that was in conflict of their views because by that point we often see children are inclined to vote with their feet, and if they're not happy with an order, then you know all the sheriffs in the world are not going to make a 15-year-old go somewhere perhaps that they don't want to go. Child welfare reporters can be involved in assessing the age and maturity of children as part of their report, and that often can help a judge in deciding what weight to give to the views and also whether the children's views are their own or whether they've been subject to any influence, and that's an important factor as well. But certainly I think the Scottish judiciary are trying to work out at the moment what to do where there's a conflict between views and best interests and it fuels through some of the cases that I'm dealing with, the views are definitely becoming more determinative if they're not determinative, but they're certainly carrying it perhaps at a greater weight in light of the UNCRC and the kinds of decisions that are coming through from the judges at the moment.

00:26:39 David Lee, Host

That's really interesting. What about in England, Louisa? Does that age where children's opinions are considered differ in England and how would you assess those conflict situations are being dealt with by the courts at the moment?

00:26:53 Louisa Bestford, Senior Associate - Hay & Kilner

I agree with Victoria completely in terms of the amount of weight that is attached to a child's view to whether in the range of I would say 13 to 15, but as she says, increasingly as time goes on, there is more way attached to it. I think there's absolute relevance in saying that the children currently form their views in a different way to perhaps how we might have done in years gone by, I think that's partly due to the educational system. I do feel that children are far more empowered and encouraged to express opinions and views, they can articulate them well. The danger with that is, as Victoria said, that this can be heavily influenced by people in the home. The fact there is conflict in itself raises the likelihood that there are discussions going on at home that they'll be overhearing and they'll be exposed to that kind of information, which perhaps as children, they shouldn't. But the courts are tasked with understanding why there is a disconnect. They have to do a balance of harm test really, and think about the impact of making a decision that isn't consistent with the child's views. Absolutely, if they're in the region of 15, they will vote with their feet and do their own thing. As a Mum, I'm quietly confident that generally kids take that approach.

The judges are respectful of children and there was a recent case which demonstrated that and it was reported in the press that there was a judge who had concerns that the child must understand where they were coming from with their decision, and they state the judge concerned, wrote a letter and stated I hear you loud and clear, but you don't want to see your Mum and you want people to stop bothering you. They followed on to say I take what you say seriously, and I respect your views, that lends to the fact that children are not always best placed to make decisions about what's good for them. Children are very complex. I once heard a judge describe a child as the analogy of an onion. You might get something on the surface but bit by bit, during the course of the proceedings, peel it back and you'll find there's a lot underneath if you scratch the surface and that stayed with me because when you look at these situations, they are very fact specific.

It is very important that we have people like Cafcass involved who can advise the court on what might be the changing opinions of the children. The difference I would say that these opinions and matters relating to the children aren't necessarily taken into consideration until after the first hearing and there encouragement to settle matters at the earliest opportunity because protracted proceedings are not good for anyone concerned, especially the child but Cafcass won't be involved if it doesn't get past that first appointment. If lawyers can sit down together and make an agreement, that agreement can be embodied within an order and the child won't get the opportunity to express their views. It would be at that first hearing that the judge would be asking for Cafcass opinion and for a report to be carried out under what we call the section 7 report, without that we won't hear about the what the child actually is interested in. Recent research has demonstrated that it's only slightly under 50% of cases that the child's voice is heard and I think, to an extent, that is concerning and there's certainly an appetite for that to change.

00:31:18 David Lee, Host

That's very interesting. You both touched a little bit on cases and legal precedents and so on. First, Louisa, any specific kind of legal cases or precedents that you would say have shaped that current approach to consider the child's voice in family disputes?

00:31:38 Louisa Bestford, Senior Associate - Hay & Kilner

I think it's a combination of recent research and reports that have been carried out with the support of the judiciary, people involved with children, local authority, various charity organisations that deal with issues like child abuse, safeguarding and so they've got the right people involved with this research. That's shaping what I expect to be the trajectory of matters the way in which we're going to be looking more towards involving children.

00:32:16 David Lee, Host

Thanks very much. Victoria, any thoughts on those legal cases, precedence research that are shaping the approach in Scotland?

00:32:28 Victoria Varty, Senior Associate

So, I think it's a bit of a cliche perhaps, but we've been on a journey in Scotland. I think it starts with the 1995 Act. We talked about the changes that are coming in the 2020 Act, the UNCRC, but there's also an Inner House which is Scotland's highest civil Court of Appeal. An Inner House decision from 2021 in a case called M v C and that was a case where a sheriff had refused an application for a contact order and said it was inappropriate inquiry into the views of a child who at that time was just under five. The sheriff was concerned there was information, which was inappropriate for a child of that age, which might be communicated to them within the process of taking their views. It went to our next level which is the Sheriff Appeal Court and then to the Inner House and the Inner House upheld the decision of the Sheriff Appeal Court to overturn the original sheriff's decision and discuss the interplay between the paramount duty to consider the welfare of the child and the court's duty to take and consider the views of the child.

The court emphasised in that cases will rarely be correct to conclude that seeking the views of the child will cause unavoidable and material harm to the child. It's interesting, Louisa said, that there was some research that there was just under 50% of the cases and I think she said that the children's voice is heard and the decision of the Inner House, they said that if children are of a sufficient age and maturity to form and express a view, their voices must be heard unless there are some weighty adverse welfare considerations of sufficient gravity to supersede the default position and I think that's quite a pithy summary of where we are in Scotland at the moment in terms of the law regarding children views as the Inner House said, their voices must be heard and the role now is trying to figure out the most creative and appropriate ways in which to take those views.

00:34:32 David Lee, Host

Where do you expect Victoria to see further changes in this area of law? We've heard a lot today. Both you and Louisa have spoken about being more child-centred, more cases where the child's voice is going to be heard. Where do you expect to see those changes coming?

00:34:52 Victoria Varty, Senior Associate

Like we've talked about, there's a lot of changes in the 2020 Act and I think that will shake things up quite a lot once they finally become in force and there's not a date for that now, but there's lots of work to be done to prepare. I think the systems, the processes, the funding in lots of cases, resources are a big issue, I suspect, in making this work well for children. So, I think that will shake things up quite a lot in terms of how children's views are taken. Another interesting thing that's happening now is there's a movement being created for lawyers, for children, and there's an organisation who work with children representing children in illegal cases, Clan Childlaw, and they're working with The Law Society in delivering a lawyers for children course and trying to share their vision that children in Scotland to have access to lawyers who are experts in working with children in the different areas of law that affect their lives. It's very early stages, they've just completed the first course, but I think there's a hope that Scottish solicitors will become more skilled and empowered in representing children and keeping them at the heart of decisions being made about them as well as the processes being in place to allow children to represent their views when they are having decisions made which involve them.

00:36:14 David Lee, Host

Thanks very much indeed Victoria. Louisa from your perspective, where do you expect to see further changes in this area of law in in the coming years? Again, would you see this shift across towards that more genuinely child-centred approach moving on to that territory where children are more comfortable and extending the number of cases where the child's voices meaningfully heard?

00:36:42 Louisa Bestford, Senior Associate - Hay & Kilner

I think it would be a very sad day when we see children regularly attending court, even at the ages of 14, 15 and 16, so I don't expect that that will be the direction we go in. I think there is absolutely no doubt that participation is going to increase. We are hearing this from very high authorities within the system, we are seeing these reports and research being carried out, which doesn't happen lightly. There's a lack of satisfaction with there not being a mechanism for the children to be heard if things are settled at a first hearing. The direction of travel will be toward increased involvement of children and I think the issue is how we facilitate that.

00:37:32 David Lee, Host

Thank you very much indeed. As we heard quite early on during that podcast, there are some quite significant divergences in terms of the structures and how the courts and the legal systems deal with children but those underlying principles are very, very similar and there's this clear direction of travel to making sure that those children's voices are heard and to helping them to understand and engage with the court process much better.

This episode was part of Podcasts by Brodies, where some of the country's leading lawyers and special guests share their Enlightened Thinking about significant issues and developments in the legal sector, and what that means for organisations, businesses and individuals across the UK's economy and wider society. If you'd like to hear more please subscribe to Podcasts by Brodies on all the main podcast platforms and for more information and insights please visit www.brodies.com.