The United Nations Convention on the Rights of the Child (UNCRC) is one of the most widely ratified international conventions. Many of its principles are already enshrined in family law in Scotland. The existing statutory framework which deals with family proceedings involving children (Section 11 of the Children (Scotland) Act 1995) emphasises the paramountcy of the welfare of the child when decisions are made concerning their care arrangements. The present law takes seriously the right of a child to have a voice in proceedings which affect them. That right will be further enhanced when the Children (Scotland) Act 2020 comes into force. Currently only children of twelve are presumed to be old enough to express a view in legal proceedings, although our courts have proved to be increasingly willing to recognise that much younger children have views which they can communicate and which ought be considered when decisions are made. The new Act removes that presumption and requires the court to consider the views of any child, provided that the child is "capable" of expressing a view.
My colleagues have previously examined recent changes in the law which relate to views of the child in family court proceedings. Fiona Sharp reviewed the revised, more child friendly and more engaging Form F9 which children may complete in court proceedings and Kate Bradbury summarised what the provisions introduced by the Children (Scotland) Act 2020 will mean for a child.
In this blog, I focus on the court's duty to consider the views of the child and important recent cases.
The Children (Scotland) Act 2020 removes the practicability test for taking a child's views contained within the present wording of Section 11 of Children (Scotland) Act 1995 and replaces it with a capability test, so that any child who is capable of forming and expressing a view should be heard irrespective of chronological age. This is more consistent with the provisions of the UNCRC.
Two recent cases examine the duty of the court to consider the views of a child; LRK v AG [2021] SAC (Civ) 1 and M v C [2021] CSIH 14. They also demonstrate the increasing willingness of courts in Scotland to consider the views of even very young children.
InLRK v AG, the sheriff granted an order to regulating contact between a father and a six-year-old child who had not seen her father for five years. The mother appealed that decision to the Sheriff Appeal Court on the basis that, amongst other grounds of appeal, the views of the child had not been considered. The Sheriff Appeal Court upheld the appeal and criticised the sheriff's approach in granting the order without obtaining the child's views. The sheriff had observed "it is agreed all round that the child is really too young to express views and that it would be difficult, in any event, to try and ascertain what her views are." It was accepted by the Sheriff Appeal Court that this was a fatal misunderstanding of the court's duty to ascertain the child's views unless as a matter of practicability it is impossible to do so. It mattered not that the parties' agents did not invite the court to consider the views of the child at proof. There are various ways that the court can obtain a child's views, only one of which is to request the child fill in a form F9. A child of this age could, for example, be interviewed by a Child Welfare Reporter or indeed by the sheriff (and some sheriffs do speak with children direct before making decisions). The court also went on to consider whether the duty to take the child's views as set out in the Children (Scotland) Act 2020 might in some cases override even the welfare principle, given that the practicability test had been swept away in the statutory framework. This concern was, nevertheless, dismissed by the Inner House in M v C.
M v C is an appeal which wound its way from the sheriff though the Sheriff Appeal Court and then to the Inner House of the Court of Session. The sheriff had refused an application for a contact order and stated that it was inappropriate to enquire into the views of a child, who was just under five years old. The sheriff was concerned that that information inappropriate for a child of just under five might be communicated to them in the process of taking their views. The Inner House upheld the decision of the Sheriff Appeal Court to overturn the Sheriff's decision and discussed the interplay between the court's paramount duty to consider the welfare of the child and the duty in respect of ascertaining and considering the views of the child. It was stressed by the court that in considering whether it is practicable to take a child's views the court must take into account whether doing so would of itself be harmful and so inconsistent with the child's welfare. The court emphasised that it will "rarely be correct to conclude that seeking the views of the child will cause unavoidable and material harm to the child." The court went on to state "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." Considering the options for engaging with children effectively whether by interview or other means will often resolve concerns about the impact upon children of expressing their views.
In summary Scots law (both in terms of the present statutory framework and the provisions of the 2020 Act when in force) reminds us that children should have a meaningful voice in proceedings which will affect them more than anyone else. In the words of Baroness Hale in the case Re D (A Child) (Abduction) [2007] 1 FLR 242 “it is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right." Whilst the decision of M v C has reminded us that the court's overriding duty to protect the welfare of the child must always be engaged when considering if and how to obtain the views of a child in relation to family proceedings, it will only be in exceptional circumstances that the welfare principle should trump the duty to obtain the views of a child.
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