Scottish Government

'Voice of the Child' Under the Children (Scotland) Act 1995: Volume 1-Mapping Paper

Chapter two: Part I of the Children (Scotland) Act 1995

Which decisions require children's views to be considered?

2.1.1 Section 1 sets out the responsibilities owed by parents to their children. Subsection 3 states that the child, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those responsibilities.

2.1.2 Section 2 sets out the parental rights available to facilitate the exercise of parental responsibilities, and gives parents title to sue or defend in any proceedings as respects those rights.

2.1.3 Section 3 says that mothers, and those fathers who were married to the mother at the time of the child's conception or subsequently, have parental responsibilities and rights without recourse to legal process. Section 4 provides that a mother and an unmarried father (who does not have responsibilities and rights) of a child may enter into a formal agreement, with the effect of vesting all parental responsibilities and rights in the father as well as the mother.

2.1.4 Parental responsibilities and rights include the responsibility to safeguard and promote the child's health, development and welfare, and the right to control, direct or guide the child's upbringing. Decisions involved in the exercise of such responsibilities and rights could include choice of school, medical treatment and examination, relocation of the family home, or emigration. Parents may go to court if agreement cannot be reached about these matters, but Section 1(3) means that the child may, even where there are not proceedings in court, take the matter to court.

2.1.5 Section 11 gives examples of orders that the court may make in relation to parental responsibilities and rights. These include: removal or imposition of parental responsibilities or rights; residence and contact orders; specific issue orders; interdict in relation to administration of the child's property; management of the child's property, including the appointment of a judicial factor or a referral to the accountant of court. The court is not restricted to the orders listed in Section 11, and is empowered to make such order "as it thinks fit" within the broad scope of parental responsibilities and rights, guardianship and the administration of children's property. A child could initiate or be represented in proceedings where any such orders were sought.

2.1.6 In order to facilitate the exercise of these rights, Schedule 4 of the Children (Scotland) Act 1995 added S2(4A) to the Age of Legal Capacity (Scotland) Act 1991 to provide that a person under the age of 16 years shall have the legal capacity to instruct a solicitor in any civil matter, where that person has a general understanding of what it means to do so. Without prejudice to the generality of that subsection, a person 12 years of age or more is presumed to be of sufficient age and maturity to have such an understanding.

2.1.7 It is clear that there is a wide range of proceedings that could, theoretically, be raised by a child. This could include seeking interdict against the exercise of a particular right (for example, a move away from the area known to the child). It could include specific implement, where a child wished a parent to carry out a particular function (for example, if a parent were refusing to agree to allow a child to take a particular subject at school). Most interestingly, it could include an action by a child to seek to interdict a parent from signing a Parental Responsibilities and Rights Agreement under Section 4 of the 1995 Act.

2.1.8 A child would also be able to raise an action for damages against a parent who had failed adequately to fulfil parental responsibilities and rights and thereby caused damage to the child. A child who had not received adequate medical care due to parental refusal to allow a procedure to go ahead, or who had been damaged by a parental refusal to maintain contact, could also raise proceedings.

2.1.9 Children's rights are not restricted to legal proceedings. Section 6 requires those making 'any major decision' in fulfilment of a parental responsibility, in exercise of a parental right, or in giving consent, to have regard 'so far as practicable' to the child's views. There is a rebuttable presumption of maturity at age 12. This provision covers not only those with formal parental responsibilities and rights but also those accorded more limited and temporary responsibilities and rights by Section 5 (1). This provides that someone over 16 who has care and control of the child, but does not have parental responsibilities or rights in relation to the child, has responsibility to promote the child's health, development and welfare. That person may give consent to surgical, medical or dental treatment or procedure where the child is unable to consent, and the person does not have knowledge that the parent would refuse to consent. Section 5 (2) states that the section does not apply to a person with care and control of a child in school. This means that foster parents and other temporary carers are legally empowered to make decisions in relation to 'health, development and welfare'. This phrase is broad and could include decisions about enrolment in school, psychological counselling or other types of therapy, decisions about diet, friends and many subjects of great importance to children.

2.1.10 Section 6 does not define the "major decisions" to which it is to apply. However, Section 7 specifically provides that the appointment of a guardian, to take effect on the death of the parent, is a "major decision" for the purpose of Section 6.

2.1.11 The Act is less clear about its application to other parental decisions that will significantly affect the child. It dose not explicitly apply to the Section 4 agreement vesting responsibilities and rights in the unmarried father. However, whilst it is not specifically designated as guidance, the material issued by The Scottish Office as an accompaniment to the form prescribed for this agreement quotes Section 6 with regard to the views of the child. It adds:

"The mother should pay attention to the child's views if he or she wishes to express them … If the child really understands what it is about and doesn't want the mother to make the agreement, the mother should think very hard about whether it would still be in the child's interests to make the agreement."

2.1.12 The following table lists decisions affecting children made in terms of Part I of the Act, and indicates whether there is any requirement to seek to ascertain children's views.

Table 2.1 Analysis of Decisions under Part I

These are further discussed below in the text, with references made to the table.

Comment on the above

2.1.13 A limitation on the child's ability to raise such proceedings lies in the fact that most children will require to be granted legal aid before going to court. The legal aid rules provide for children who apply on their own behalf to be assessed on their own resources, and most children will, therefore, fulfil the financial criteria. However, the Scottish Legal Aid Board must find that there is probabilis causa and that the grant of legal aid would be an appropriate use of public funds. No regulations govern the Board's decisions in this area: it is a matter of administrative discretion. Research might explore the criteria applied by the board in assessing the applications of children, and the consistency of approach taken.

2.1.14 It would also be instructive to investigate the decision-making process whereby a child client and the solicitor reach the view that court action should be taken. It may be that, while a legal aid certificate was made available to the child to 'sue' a parent, it was decided that this route would not be appropriate for the child, who may still be living with, or in contact with, the parent.

2.1.15 The interpretation of 'major decision' in terms of Section 6 (Ref. 1) will determine the extent of its application to decisions within the family or by those with 'care or control'. As indicated above, there is no general definition of 'any major decision', so that the child has no absolute legal right to be consulted on, for example, moving house or emigrating (except if the child is 'looked-after'). Would there be much benefit in attempting to define 'major decision'? The potential for encouraging a restrictive or exclusive application may be greater by attempting to do so than by leaving the matter open. Perhaps the matter requires preliminary monitoring before any decision about further guidance is made.

2.1.16 It is appreciated that Section 2 (3) and (6) (Ref 3) was inserted to alleviate some difficulties with regard to international child abduction and that these considerations still apply, but it has an impact on more everyday expectations of children where the lack of a requirement to have regard for the child's views can be frustrating for the child and may lead to resentment. It is relevant to children who wish to go on holiday abroad, either with one parent who has joint parental responsibility and who is being obstructed by the other parent, or by a child in foster care, for example, who might wish to go abroad with the foster family in the face of parental objection. The impact of this provision might be softened by Section 2 (6), which says that the persons with the right to give or withhold consent have to be actually exercising the rights of residence or regular contact, before their consent is required. Furthermore, Section 11 allows the child to apply to the courts for an order permitting the child to leave the country. However, this seems a little heavy-handed.

2.1.17 Sections 6 and 7 require consideration for the child's views when the guardian is nominated (Ref 5). However, the nomination might take place when the child is very young, whereas the appointment might take automatic effect when the child is much older and has firm views. The child may of course apply to the court to have the appointment revoked, but this seems quite onerous. It would be better were the child's views taken on board also at the time the appointment was due to take effect.

2.1.18 Norrie (1998) suggests that referral to the Principal Reporter (Ref 11) will be appropriate only where the ground is established in the proceedings "with the sufficiency of evidence required for a sheriff to determine that a ground has been established on application of the reporter under S68". However, this is not explicitly required by law. Norrie adds, "Courts will have to be very careful here to ensure that there is sufficient opportunity to challenge any evidence suggesting that the appropriate ground of referral exists, since the main purpose of the proceedings is not directed towards that finding." There is potential here for the child to discover that grounds for referral have been established without any opportunity to take part in a process setting out to establish them.

2.1.19 The Act is very concerned to ensure that third parties do not lose out on property matters merely because children have not been appropriately consulted (Sections 6(2) and 11(8)). There is also a lack of clarity about the duties laid on the Accountant of Court, and judicial factors as regards taking account of children's views. (Refs 15-17)

Which children are included in any such requirements?

2.2.1 Section 15(1) says that, for the purposes of Part I:

"'Child' means, where the expression is not otherwise defined, a person under the age of eighteen years."

The expression is otherwise defined for the purposes of Sections 1 and 2 of the Act, relating respectively to parental responsibilities and parental rights. Section 1(2) defines "child" for the purpose of parental responsibilities as a person under the age of 16. For one aspect only of parental responsibilities, the age is raised to 18: the responsibility to provide guidance to the child in a manner appropriate to the child's stage of development. Section 2(7) applies the parental rights provisions to children under the age of 16. There are no exceptions. This means that, where a child is over 16 but under 18, a parent has no parental rights, but retains a responsibility to give appropriate guidance.

2.2.2 Section 1(3) gives the child, or any person acting on his behalf, title to sue or to defend, in any proceedings as respects those parental responsibilities. Section 11(5) interprets the word "person" in Section 11(3)(a), as inclusive of "the child concerned". This clarifies the title of the child to apply for an order under Section 11 relating to parental responsibilities and rights. The effect of this is to widen the scope of the child's potential action, from the responsibilities mentioned in Section 1 to the whole spectrum of responsibilities and rights listed in Section 11(1). More specifically, Section 9(9) defines "child" for the purpose of that section (safeguarding of children's property) as "a person under the age of 16 years who is habitually resident in Scotland." Section 6 provides no specific definition of child; therefore the Section 15(1) definition applies. However, the scope of application will largely be restricted to those aged under 16, as Section 6 would apply to 16-18 year-olds only to the extent of requiring parents and others to consult their child about major decisions about which they were offering guidance. Both Section 6 and Section 11 require parents and the court respectively to have regard, so far as practicable, to the views (if he wishes to express them) of the child concerned, taking account of the child's age and maturity. Both sections contain a presumption that a child of 12 years of age or more is of sufficient age and maturity to form a view.

2.2.3 The difference in approach between sections 6 and 11 lies in the fact that the court has a more positively-stated obligation to give a child an opportunity to indicate whether s/he wishes to express a view and, if so, to give her/him an opportunity to express it (Section 11(7)). The parental obligation is less clearly defined. Norrie (1998) comments that "the wording suggests that the person making the decision is obliged to seek out, or at the very least to give the child the opportunity to express, his or her views."

What processes are specified for the ascertainment of children's views?

2.3.1 While Section 6 obliges parents and carers to have regard to the views of children when taking 'major decisions', there is no mechanism in place to ensure that this is carried out. In contrast with the court's duty under Section 11, there is no duty on the parent's part to seek the child's views. It may be that it was assumed that the parent, unlike a court, would have no difficulty in simply asking a child what s/he thinks, and that any mechanisms were unnecessary. The drafting does mean, however, that while the parent is under a duty to take account of views if expressed, s/he is not obliged to seek the child's views as a preliminary step. Further, there is no requirement that documentation supporting an exercise of parental responsibilities or rights should indicate the child's views or confirm whether the child had been consulted. A parent deciding to move abroad, enrol a child in a boarding school, or enter with a separated spouse into a Minute of Agreement detailing care arrangements for the child, is not required to answer any questions about what the child's views are, to confirm, for example, that the child is unable to express a view. The parent and any solicitor involved are protected by Section 6 (2), which provides that a transaction entered into by a third party and a child's representative cannot be set aside simply because the child has not been consulted. This could cover selling or acquiring property. It might also cover a situation where a child is to perform in film or theatre. The result is that if a child wished to be involved in a decision that s/he considered 'major', the only mechanism provided by the act is that of raising proceedings 'in respect of' parental responsibilities and rights. One imagines that a child's application for legal aid in these circumstances might be met with the 'reasonable expenditure of public funds' argument.

2.3.2 It is notable that those with parental rights and responsibilities are not obliged to advise children that they should be consulted in relation to major decisions, although the Scottish Office publication 'Your Children Matter' refers to the legal position and encourages parents to consult their children. Nor has literature been provided specifically to advise children about the duty on parents to consult them. The booklet for young people 'You Matter' is aimed at those children and young people whose parents are separating. Nevertheless, it is capable of more general application, so that wider dissemination might be encouraged.

2.3.3 Section 7 (6) provides that the appointment of a guardian is a 'major decision', and therefore those making the decision must have regard, so far as practicable, to the child's views. Again, there is no provision that the written appointment confirms whether the child's views were sought and if so, what they were. In both appointment of guardians and in Section 4 parental responsibilities and rights agreements, such provision could have been made.

2.3.4 Section 11(1) provides that a sheriff court or the Court of Session may make an order in relation to parental responsibilities, parental rights, guardianship and administration of the child's property, in "the relevant circumstances". Those circumstances include an application by anyone who "claims an interest". That would include an application by a child. Section 11(1) also provides that the proceedings may be independent of other proceedings. This means that a child, or anyone with an interest, could raise an action to have a decision made about a child's life, even where there were no ongoing proceedings such as a divorce action. The wording of the subsection also means that where there are ongoing proceedings, an order relating to parental responsibilities and rights may still be sought.

2.3.5 There is a wide range of proceedings covered by Section 11, the most common being residence orders, contact orders, and imposition or removal of parental responsibilities and rights.

2.3.6 Unlike in Section 6, the decision-maker, in this case the court, must find out whether the child wishes to express a view (Refs 8 and 9). Section 11(7)(b) says that the court "taking account of the child's age and maturity, shall, so far as practicable -

The entire edifice falls if the child is not given an adequate opportunity to indicate whether he or she wishes to express a view. The Rules of Court address this by requiring intimation on a child to alert him or her to the fact that an important decision is going to be made and to explain how the child can start the process of expression of any views which he or she may have.

2.3.7 The Sheriff Court rules - 33.7 (h) - provide that in an action where a Section 11 order is sought, there should be a crave either for service on the child or for dispensing with the need for service. The approach of the bench is crucial to the operation of stage one. A writ will be sent up to court, and will either crave service on the child or will ask for dispensation. There are indications that some solicitors, having regard to the presumption of maturity at age 12 (Section 11(10)), ask for a warrant for service only on children aged 12 or over and seek dispensation below that age. The writ asking for dispensation will simply say "on account of the child's tender years" or "on account of the child's age and immaturity". Research might survey family lawyers and others on their practice with regard to writs containing craves for orders relating to children.

2.3.8 When the writ goes up to court seeking warrants for service, the court (sheriff) will be required to decide whether to serve notice on the child. The Rules give the sheriff discretion to dispense with intimation where "appropriate," although in one instance an additional reference is made to the child's ability to form a view (see Comment in Appendix B re Section 12). If the sheriff accepts the argument that the child is of tender years etc., without further enquiry, then the first chance to give the child an opportunity to indicate whether he wishes to express a view has been lost. Thereafter, a child who does not receive notice of the action will be reliant on one of the adults in the process - the parties, the solicitors or the sheriff - providing a way in to the action.

2.3.9 No guidance is given as to what criteria the sheriff should apply. The child does not have to be consulted about the sheriff's decision to dispense with intimation. Whilst it might seem circular to do so, it could be that in the case of a child who is 'capable of forming a view' in terms of Article 12 of the UNCRC, some exploration should be made of the 'appropriateness' of intimation through some contact with the child, before a decision is made.

2.3.10 The official notification, the Form F9, also presents difficulties. It may be intercepted by a parent and not received by the child. It may be completed by a child who is being advised by a parent who is a party to the action. It may be difficult for a child to understand, and that child may find there is no answer from the Scottish Child Law Centre's advice line, due to changes within that organisation, including a change of the telephone number given on the form. It would seem that the actions of parents cannot be legislated for, and that there will always be difficulties in 'official' notification, unless the system were prepared to appoint, in every case, a person (e.g. court reporter) whose job it would be to go through the form with a child personally, explaining the process and supporting the child.

2.3.11 Intimation is only one of a number of ways in which the court could seek to ascertain whether a child does wish to express a view. The following questions arise:

• What criteria do sheriffs apply when deciding to dispense with intimation, and how consistent are they?
• When sheriffs do dispense with intimation, do they take any other measures to ascertain whether the child has views, as Section 11(7) would seem to require sheriffs to do?

Interestingly, both A.S. 93, r. 33.19(2) and A.S 97, r. 3.5 (which applies to public law cases) show that the sheriff is expected to use his or her imagination and discretion in deciding how to ascertain the views of a child who has indicated a wish to express them. Perhaps the same expectation should be laid upon a sheriff considering how to ascertain whether a child wishes to express views.

2.3.12 The Rules appropriately extend the free expression of the child's views to matters that are the subject of joint minute between the parties.

2.3.13 The second stage of the process is to give the child the opportunity of expressing a view. This can be done in several different ways. The child may fill in the Form F9 and send it back. Return rates and numbers containing views should be researched. The court may appoint a court reporter or curator to report on the child's views. Research might explore whether the number of such appointments, particularly of reporters, has increased since implementation of Part I of the Act. The court may express the wish to hear directly from the child and ask for the child to be brought to the court. Some sheriffs have now built up considerable experience in talking to children, and any research should consider the methods of communication used and the sheriff's perceptions of the influence of those views on their decisions.

2.3.14 A child may take independent legal advice. If this is done, there are, again, several ways in which the child's views may be expressed. The solicitor may help the child to fill in the Form F9, or may write to the court on the child's behalf or may seek to have the child sisted as a third party to the action.

2.3.15 Alternatively, the solicitor may appear on the child's behalf at the Child Welfare Hearing to express the child's views. The Child Welfare Hearing (CWH) is a forum introduced by the 1996 amendment to A.S. 93 with the aim of facilitating a speedy resolution of matters relating to children in the context of family actions. Whilst Section 11(9) of the Act is clear that a child does not require to be legally represented in proceedings, the attraction for a solicitor of appearing at a CWH is that, since under rule 33.22A the hearing should take place early in the case, it may be a chance to influence the adult parties and the decision-maker before major decisions have been taken. There may be a feeling among experienced practitioners that it is not advisable for children themselves to attend CWHs, although they may do so (rule 33.22A (5)).

2.3.16 In the majority of cases, it is likely that the child will not be legally represented but will have expressed a view to a reporter, curator or sheriff directly. Rule 33.20 provides that where a child has expressed a view, the sheriff or someone appointed by the sheriff must record the view. The rule also provides that the sheriff may decide whether it should be kept confidential. It can be seen from this that there is no automatic right to confidentiality for the child. There are indications that some reporters and curators have adopted a practice of recording the child's views separately from other information in their reports, thus facilitating their request that the views be kept confidential, where the child has said s/he does not want the parents to know. The extent of this practice might be explored in the research.

2.3.17 The decision on confidentiality is the sheriff's. The case law set out in Appendix A shows a concern that the child's right to be able freely to express views be balanced against the parties' rights to due process. It is still possible, and indeed may be common in some sheriffdoms, for the child to be given confidentiality in expressing views, but the matter is uncertain. It may be that it is particularly difficult for a sheriff who sees a child him or herself to offer this, as the sheriff must be seen to allow parties the opportunity to challenge any evidence to which s/he has given weight.

What weight is to be given to the child's views?

2.4.1 The third stage of the process of taking account of the child's views is to 'have regard to such views'. Except for the presumption of maturity at age 12, there is no further guidance to the court on what weight to give children's views. Research might explore whether the age is regarded as particularly significant. It may be that experienced curators and reporters, known to the court, will give a description of the child which could be used by the court as an aid to decisions on weight to be given. Research might explore the weight that sheriffs attach to the views of court-appointed persons.

2.4.2 The ability of the child to express views clearly "and in his [/her] own words" will be influential when the weight to be given to the views is being considered. Children who are not well educated, or who have learning difficulties or a language barrier, may all have had less influence on decisions when expressing their views. This is a matter for research to explore.

2.4.3 Crucially, whether the child has legal representation or not may affect the weight to be given to his/her views. In relation to a proof hearing, that is legally certain, since the child will be a third party and his/her evidence must be considered with all other parties. It may also be the case that having a legal representative to discuss matters with the child, to explore issues and to explain processes, could improve the child's understanding and help the child influence the decision-making. In addition, there is the simple fact that a party who is legally represented appears on a level playing field with all other parties, and does not start at a disadvantage.

Is there provision for feedback to the child about the decision and the consideration given to the child's views?

2.5.1 There is no provision made for feedback within these processes to anyone except an unrepresented party. Therefore, if a child were a party to the proceedings, and were unrepresented (which is unlikely), s/he would receive information from the court as a party litigant.

Comment on the above

2.6.1 The actual impact of the provisions of the Act and associated rules of court will depend upon the way in which they are interpreted and used. In particular, the interpretation of 'major decision' in terms of Section 6 will determine the extent of its application to decisions within the family. The use made by sheriffs of their power to dispense with intimation on the child will determine whether the principle of regard for the child's views is allowed even to start to make an impact.