In this short series, we want to highlight the changes made by the Children (Scotland) Act 2020 and the likely effects. This blog will focus on the views of the child.
The 2020 Act gives children and young people more opportunity to give their views in any s.11 action brought before a court. An s.11 action relates to, among other things, residence (where the child will live), contact (who the child will see), and specific issue (any other relevant issue which requires to be determined).
Until now, the presumption was that a child aged 12 or over was mature enough to give their views. The courts were not prevented from obtaining views of younger children however the court would require to be satisfied that a child under 12 was of sufficient maturity to give their views to the court.
The 2020 Act has removed this presumption and instead provides that a child must be given the opportunity to express their view. The presumption, and starting position, now is that any child is able to form a view. The court is not required to obtain the views of the child if that presumption is rebutted and the court is satisfied that the child is not capable of forming a view or the whereabouts of the child are not known.
Obtaining the Child’s Views
The views should be obtained in a matter which the child prefers or in a manner which is suitable to the child if they have not expressed a preference. There is however no requirement for the child to become involved in the court process. The child’s views can be obtained using a Form F9 (a form issued by the court asking the child for their views on specific questions which can be completed with the assistance of an adult, such as a guidance teacher, if the child so chooses), a child welfare reporter (an experienced practitioner who is directed by the court to obtain the views of the child, and usually others, and report to the court) or sometimes by the child being interviewed by the sheriff. The 2020 Act has also imposed a duty on the Scottish Ministers to ensure that there is the availability of child advocacy services for the purposes of assisting a child in relation to their involvement in any action involving an s.11 order.
Although the court must obtain the child’s views, the appropriate weight will be given to them according to the child’s age and maturity. On that basis, it would seem logical that the court is still more likely to attach more weight to the views of a teenager than, say, a child who is 5 years old.
Explaining the decision
The 2020 Act has also gone a step further. When the court makes an s.11 order about a child, the court must ensure that the decision is explained to the child in a way that the child can understand, if the court considers it appropriate to do so. It will not be necessary for the court to explain every decision and the court is not required to explain the decision when the child would not be capable of understanding the decision or it is not in the child’s best interest.
There are different ways that the decision can be explained. Firstly, this could be by way of the sheriff either speaking to the child or explaining their decision in writing. Alternatively, the court can arrange for a child welfare reporter to explain the decision to the child. It is likely that the decision will be explained to the child in the same manner as the child’s views were obtained.
If you would like advice on this or any other Child Law or Family Law matter, please contact the Blackadders Family Law team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Emma Sadler, Senior Solicitor
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