Children’s Voices in Scottish Family Proceedings
In family proceedings, the Courts bear the responsibility of making decisions which they believe will have the most positive effect on a child’s future life. Irrespective of whether the fundamental issue concerns contact or a child’s place of residence, the child’s voice is always a Court’s main concern and protecting their views is paramount. It is widely understood in the modern day that children are not simply passive bystanders to family disputes. They have rights, views and opinions that must be respected and heard.
If you are involved in a family dispute and would like advice on how your child’s views may be considered, our experienced Family Law team can guide you through the process with clarity and sensitivity.
Call us today on 0141 433 2626 or complete our online contact form to arrange a confidential consultation and receive clear advice tailored to your family’s circumstances.
The Children (Scotland) Act 1995 and a Child’s Right to Be Heard
The Children (Scotland) Act 1995 made it a requirement for the Courts to consider a child’s views with utmost importance and to give the child the opportunity to express those views. The Act enforced this with a presumption that any child aged 12 years and older had sufficient maturity for their views to be taken into account.
For children who did not yet meet that threshold age, it was at the Judge’s discretion whether to seek that child’s views. This discretion was widely used and allowed for children of a far younger age to put forward their opinions. It was then the role of the Court to determine the weight to be attached to those views, depending on the individual circumstances.
Key Changes Under the Children (Scotland) Act 2020
With time came the Children (Scotland) Act 2020, which further stressed the importance of allowing a child’s voice to be heard in Scottish family law proceedings.
This Act removed the previous threshold age of 12 and instead moved toward an assumption that a child of any age is capable of forming a view worthy of consideration, unless it is demonstrated that, for good reason, this is not the case. An exemption may apply where, for example, it is evident that a child lacks capacity.
This reform made a significant impact in Scottish family law. It made it easier for children to have a say and made it clear that a child’s age should not be the only factor in deciding
whether or not to ask for their opinion.
Article 12 UNCRC and Children’s Rights in Scottish Family Law
This legislation in Scotland further emphasises the principles put forward by the United Nations Convention on the Rights of the Child (UNCRC), particularly Article 12.
Article 12 echoes the idea that any child capable of forming views has the right to express those views freely in matters affecting them. Those views must be given due weight in accordance with the child’s age and maturity. Scottish law now more closely reflects this international standard.
Safeguarding Children When Taking Their Views in Family Proceedings
Having a child express their views in family circumstances can often be a challenging and emotional task. It may raise strong feelings and, in some cases, be traumatic. Therefore, it is
extremely important that the child is safeguarded adequately throughout the process.
The Court is responsible for ensuring that a child’s views are gathered in a way that is safe, sensitive and free from unnecessary pressure. Safeguarding includes creating an environment where the child can speak freely and does not feel responsible for the eventual outcome of the case.
The Courts must strike a delicate balance between protecting the child and enabling meaningful participation.
How a Child’s Views Are Heard in Scottish Family Court Actions
There are a number of ways in which a child’s voice can be heard in Scottish family proceedings. It is unusual for a child to give evidence directly in court. Instead, there are structured and child-sensitive approaches.
In family actions, an F9 Form is often completed at an early stage. This prompts the Court to consider whether a child’s views are required in the action before it. From that point, the Court will determine how those views should be gathered.
A Sheriff may appoint a Child Welfare Reporter. This is an independent professional who meets with the child and prepares an impartial report for the Court. This method often allows the child to feel more at ease discussing what can be a very difficult topic. The child can express as much or as little as they wish, and they are not obliged to take a position.
In some cases, the Judge may also meet with the child directly. This can help the Court better understand how the child sees things, while still making sure that protections are in place.
Ultimately, the overarching principle remains that a child must have a proper and fair opportunity to express their views in a manner appropriate to their age and maturity.
Contact Our Family Lawyers for Advice on Child Contact and Residence Disputes
If you are involved in a dispute concerning child contact, residence, or parental responsibilities and rights, obtaining clear legal advice at an early stage is crucial.
Our specialist Family Lawyers have extensive experience in Scottish family proceedings and can advise you on how a child’s views may be taken into account in your case. Contact our team today on 0141 433 2626 or complete our online contact form for clear, practical guidance tailored to your circumstances.
