Children Should Be Seen and Heard

Frequently, in separation and divorce, the most heartache is caused over disputes regarding children and I am often asked whether or not the child’s view is taken into account about whom they want to stay with.  The Scottish legal system is among those jurisdictions that have taken on board the UN Convention on the Rights of the Child 1989, Article 12(2) “the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative.”

Opinion remains divided among parents and professionals as to whether it is in the child’s best interests to be involved in court proceedings and what form, consultation with the child should take. Some parents discuss the situation with the child in great detail, explaining the state of affairs and the available options. Other parents may believe their child is too young and avoid talking about the separation, not wanting to upset or confuse the child.

However, recent research has shown that children in Scotland are generally keen to have their views considered when parents are separating or divorcing. 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 the opportunity to indicate whether he or she wishes to express a view, give him or her the chance to do so and give regard to that view.

So what mechanisms are there for giving children a voice in family law disputes? There are a number of methods of ascertaining children’s views.

  • The F9 Form. This form can be sent at any time during a case to a child who is the subject of a court action regarding contact. 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.
  • Court –ordered reports. A report may be ordered by the Sheriff. The extent of the report will be determined by the Sheriff. Normally it would cover the general circumstances of the case, the views of the child and the outcome of discussions with teachers, counsellors and other relevant parties.
  • Using a curator ad litem. A curator ad litem can be appointed by the court to assess the views of children and to make recommendations on their behalf. Their role differs from that of a solicitor in that they have to decide what is in the child’s best interest rather than acting upon instructions .The curator will meet with the child. However the views of the curator and that of the child might not coincide.
  • 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.
  • Representation by a solicitor. Children aged 12 or over have the right to instruct their own solicitors and thus become parties to the case in their own right.

If we can be of any assistance to you in resident or contact issues please contact Fiona Wayman – fhw@mitchells-roberton.co.uk

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