In any court action which considers children, it is recognised that an important part of the proceedings is to determine the views of the child.
The Children (Scotland) Act 1995 states that a child of 12 years or more is presumed to have sufficient age and maturity to give a view on the proceedings. For those under this age, there is a degree of discretion and it remains possible for the views of a younger child to be determined. If the child’s view is to be sought, there are a number of options open to practitioners or the court as to how this can be done. The Sheriff can appoint a Child Welfare Reporter to speak to the child or alternatively, the Sheriff can take the views of the child him or herself by meeting with the child and speaking to them directly.
A further way is for the child’s views to be obtained is by way of a Form F9 which is sent to the child for him or her to complete. This would be done at the outset of a court action unless the court has dispensed with the need to serve on the child due to their young age.
For quite some time, however, the current F9 forms have been considered out of date and not fit for purpose. The wording in them is considered too legalistic and complex for a child to understand. In an effort to address the problem, The Family Law Committee (FLC) of the Scottish Civil Justice Council (“SCJC”) has been working for some time on an instrument that will replace the current court form used to seek the views of children in family and civil partnership actions. The aim was to make the design more child-friendly and the vocabulary easier to understand. This is particularly important given that the forms do not only inform children about the order the court has been asked to make, they also provide an opportunity for children to let the court know their views.
Following work by the FLC of the SCJC, the Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child)) 2019 was laid before the Scottish Parliament on 29 March and it comes in to force on 24 June 2019. This introduces changes to the way Form F9s are served and also introduces a new format for the document.
The SCJC consulted children and young people, as well as a number of organisations that work with and represent them, about how the existing forms could be improved. The FLC incorporated many of the suggestions and feedback received and a lot of work was also done to give the forms a more child friendly look and feel.
Of significance, in terms of the new rules, these make it clear that the Form F9 should not be sent to the child until it is known whether or not the court action will be defended. Importantly, if both parties to an action seek orders in relation to the child, both parties’ agents must draft F9s and these must both be approved by the court. They are then combined and only one F9 must be sent by the agent of the party who raised the action to the child. The Sheriff, however, can also order a Form F9 to be sent to a child at any time during the course of an action. This might arise in a case where a child had not been sent a form at the outset because they were considered too young but given the passage of time, the child is now mature enough to express a view. This may also arise where a child’s views have changed.
Where it is considered inappropriate to send a Form F9 to a child, the court should be asked to dispense with intimation and state the reasons why it is inappropriate to send an F9. It should not automatically be assumed that if a child is under the age of 12 they are unable to express a view as many children younger than 12 will be more than capable of doing so.
The FLC has also acknowledged that completing a form is not necessarily always the most appropriate way to obtain a child’s views. The Scottish Government has indicated that it intends to introduce a Family Law Bill into the Scottish Parliament which is likely to include provisions on how best to obtain the views of the child so we will need to watch this space! Hopefully in the meantime the new F9s will produce a welcome change and it will be interesting to see how these work in practice after 24 June 2019