The family law team are often asked, when providing advice about disputes regarding children, whether or not the child’s view is taken into account.
The extent to which parents seek their child’s view when considering contact disputes is very much a matter for them at the outset. Some parents feel it is appropriate to discuss with the child, in considerable detail, the situation and the available options. Other parents, however, often feel that their child is too young to understand and do not discuss the situation for fear of upsetting or confusing the child. If the matter is taken to court then the issue of whether the child’s views should be considered may be taken out of the hands of the parents altogether.
As with most situations, court should only be used to resolve issues relating to children as a last resort. If an action is raised at court relating to a child, the court must regard the welfare of the child as its paramount consideration. The court is not permitted to make any order unless it considers that it would be better for the child for the order be made than no order being made at all.
Often in contact disputes, the child finds themselves caught in the middle of two warring parents. Regularly children will tell each parent what they think they want to hear for fear of hurting one parent’s feelings or appearing to choose one parent over the other. It can be quite helpful, in those situations, for a child’s views to be given to the court. The Children (Scotland) Act 1995 states that a court shall, taking into account the child’s age and maturity, so far as practicable give the child an opportunity to indicate whether he or she wishes to express a view, give him or her the opportunity to do so and have regard to that view. It is important to note that the court must take into account the child’s age and maturity before considering whether to give them the opportunity to express a view.
There are a number of methods of ascertaining children’s views. We shall canvass some of the more common ones here:-
The F9 Form This form can be sent to a child who is the subject of a court action at any time during the action. It is written in very simple terms and lets the child know about the action and allows them the opportunity to communicate their views with the Sheriff by completing and returning the form.
Bar Reports A Sheriff can ask an independent solicitor to prepare a report for the court. The extent of the report will be determined by the Sheriff and can cover the general circumstances of the case, only the views of the child or any other matter that the Sheriff deems to be appropriate. Reporters often talk with teachers, counsellors and other relevant parties and report their findings to the Sheriff. The Sheriff will decide whether the completed report should be private or whether it should be made available to the parties.
Appointment of curator ad litem A curator can make representations to the court on the child’s behalf. It is important to note that they are not instructed by the child and their views may not coincide with the views of the child. The curator will meet with the child and decide what he or she feels is in the child’s best interests.
Evidence directly to the Sheriff A Sheriff may request to speak with a child personally in Chambers. This is done in private and the parties often do not know what has been said to the Sheriff.
Instruct a Solicitor A child under the age of 16 can instruct their own solicitor where they have a general understanding of what it means to do so. The general presumption is that children of 12 years or over shall be of sufficient age and maturity to have such an understanding. If a child instructs a solicitor they can then become party to the case in their own right.
The difficulty with a number of these methods is that children generally are unaware of their rights to become involved in proceedings and only do so with the assistance of an adult. There is often a suggestion of influence by one party if the child does not express a view which is consistent with theirs. If the Form F9 is completed at the child’s mother’s house, there may be a suggestion by the father that the child was being influenced by his or her mother when completing it. If a Bar Reporter meets with the child at his or her father’s house, there may be a suggestion by the child’s mother that the child had been influenced by their father beforehand. If a child attends court to express a view to the Sheriff or if they instruct a solicitor, they are generally taken to court or the solicitor’s office by one parent. The most common way to avoid these concerns is for the views to be taken in an independent place, for example at school or at the park.
There are a number of methods of allowing a child to express a view in relation to disputes concerning them though it is worth bearing in mind that, although regard must be given to those views, the Sheriff is not bound to make an order in accordance with them if he or she does not believe it would be in the child’s best interests. The best interests of the child is the paramount consideration in any action involving a child, regardless of what the child may think is best for themselves.
If you would like some more information regarding divorce law, parental rights & responsibilities, or any other aspect of family law please contact a member of our team.
