Scottish Government

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

Appendix A: Case Law

Background

This paper has been produced as part of a feasibility study, commissioned by the Scottish Executive Justice Department, in relation to aspects of the operation of Part I of the Children (Scotland) Act 1995. It provides an analysis of case law, focusing mostly on Part I of the Act but, as with the Mapping Paper generally, bringing in some relevant matters that have arisen in relation to other Parts. This review of case law was completed in March 2001.

Introduction

The cases have been extracted from reports in:

The cases discussed below are those in which reference was made to the question of the views of the child, either in passing or as part of the substance of the decision. The analysis does not attempt to take account of every case in which the views of children should have been considered. A number of judgements make no mention of this one way or the other. In particular, judgements summarised in GWD do not cover this point, unless it is part of the ratio decidendi.

Most of the cases relate to proceedings covered by the 1995 Act or the Adoption (Scotland) Act 1978, as amended by that Act. The analysis addresses a few particularly informative cases dealing with the previous legislation, where reference was made to the views of children. However, in general, it does not rehearse the case law from before implementation of the 1995 Act.

Excluded from the analysis are:

Item 1 is excluded as not relevant to the 1995 Act. Item 2 is a matter of evidential law in terms of the Civil Evidence (Scotland) Act 1988: the views of children are not relevant in deciding these matters. The recent case of T v T 2000 SLT 1442 has disposed of this matter satisfactorily for children. Regarding item 3, cases dealing with procedural issues, such as Child Welfare Hearings are included only where the issue of Children's views is also dealt with in the judgement.

Part I of the 1995 Act

Applications for Orders under section 11

1997

Henderson v Henderson 1997 FamLR 120. Sheriff Bell at Edinburgh. This was a pre 1995 Act case. The Sheriff made no orders, on the view that a custody order was not necessary, and E (11) was opposed to access, and her wishes were decisive. Sheriff Bell also expressed an opinion that there was no need to sist children as a party to the action and that their views could be taken without a child being formally represented.

McNeill v McNeill 1997 GWD 36-1822. Sheriff Scott at Edinburgh, 16/9/97. Residence and Contact Orders were made. A reporter was involved in the case and L (11) was referred to a solicitor in her own right.

1998

Perendes v Sim 1998 SLT 1382. Outer House, Lord Osborne 11/3/98. The father (P) sought access and the case was heard under the pre 1995 legislation. Nevertheless, Lord Osborne stated that the court was required to take the views of the children into account. He held, however, that the mother had clearly influenced these views as a result of her own feelings, and the weight given to the children's views should be limited. The children were aged 11 and younger.

Morgan v Morgan 1998 SCLR 681. Sheriff Principal Risk at Aberdeen, 8 May 1998, in an appeal against a decision by the Sheriff to award a Residence Order and sist the case at the child welfare hearing. The children were 10 and 7. The older child had given confidential information in response to a Form F9.

McGhee v McGhee 1998 FamLR 122. Sheriff Scott at Dumbarton, 1/6/98. Residence and contact orders were granted. The Sheriff had taken evidence from two of the children (15 and 10) outwith the presence of their parents. He clearly considered this evidence of the children's views, though "with care" because of possible parental influence.

Fairbairn v Fairbairn 1998 GWD 23-1149. Sheriff Bell at Edinburgh, 8/6/98. The children were aged 13, 7 and 5. The Sheriff observed that children under 12 could have their views sought and taken into account.

Fourman v Fourman 1998 FamLR 98. Sheriff Morrison at Edinburgh, 11/9/98. This was an application for a Specific Issue Order for the children to be removed to Australia. The children were aged 14, 10 and 6. The 14-year-old became a party minuter to the action, and the Sheriff was happy with this, and felt that being represented enabled her to take part in the proceedings without getting involved in the parental argument. She had lodged an affidavit. The sheriff referred to the views of the other children in his judgement.

McCulloch v Riach 1999 SCLR 159. Sheriff Principal McGuire at Dunfermline, 12/10/98. This was another appeal about whether the Sheriff could make a final order at the Child Welfare Hearing; he had dismissed M's application for section 11 orders. In doing that, the Sheriff had: a written report by the Curator; a verbal one; and the views of the children expressed to the Curator and another Sheriff the year before. The children were aged 10 and 7. The Sheriff Principal refused the appeal.

1999

Ross v Ross 1999 GWD 19-863. Sheriff Principal Bowen at Glasgow 6/5/99. Another appeal about disposal of a case at the Child Welfare Hearing. The Sheriff refused the father's application for contact. The Sheriff had, among other papers, letters sent by the three elder children and had taken these into account. The appeal was allowed for procedural reasons. Observations were made about confidentiality of the views of children (see below).

Mowatt v Mowatt 1999 GWD 19-864. Sheriff Principal Risk at Aberdeen, 10/5/99. An appeal about procedural orders from the Sheriff was refused. Comment from the Sheriff Principal that contact sought by the defender to the younger child was unlikely to be granted given the child's attitude to it.

White v White 1999 SLT (ShCt) 106. Sheriff Principal Nicholson at Edinburgh, 2/8/99. The father defender sought post adoption contact with the two children, aged 14 and 8. The older child entered the action of a third party and lodged answers in which she said she did not want contact. The defender thereafter sought only contact with the younger child. After proof and interviewing the younger child, the Sheriff allowed contact, but the Sheriff Principal overturned this on appeal because of the Sheriff's approach to the question of who had the onus to demonstrate that an order for contact should or should not be made. There is no mention in the judgement of what the younger child's views were, although the Sheriff had clearly heard them when he interviewed the child.

Dosoo v Dosoo (No 2) 1999 FamLR 130. Sheriff Horsburgh at Edinburgh, 12/10/99. A father sought contact with his three children, aged 15, 13 and 4 years 11 months. By the time the case came to proof, the two older children had indicated they did not want contact, and the father respected this and sought only contact with the younger child. (See Dosoo v Dosoo 1999 SLT (ShCt) 86 regarding confidentiality of these views). After proof, the Sheriff refused contact to the youngest child. There is no discussion of the views of the child.

2000

Grant v Grant 2000 GWD 5-177. Sheriff Principal Risk at Dornoch, 26/1/2000. A Sheriff granted Mrs G a Residence Order in relation to two children aged 10 and 7. A curator had been appointed, who had provided reports on the children including their views and circumstances of the parties. The appeal was about whether the findings in fact were supported by evidence and about the confidentiality of the curator's report. (See below under confidentiality). The appeal was refused.

H v H 2000 FamLR 73. Sheriff Principal Risk at Aberdeen, 6/3/2000. Mrs H sought divorce, and Mr H sought a Contact Order in relation to his stepson, aged 11_ at the proof. The sheriff, inter alia, awarded a contact order. Mrs H appealed, and the child asked to be sisted as a party and to lead evidence at the appeal, regarding the contact. He lodged an affidavit stating his opposition to contact, and Mr H withdrew his opposition to the appeal. The Sheriff Principal held that the child should be a party to the proceedings and be allowed to lead evidence, as the Sheriff had erroneously dispensed with intimation of the application on him, and that there had been no activation of the process for the child to enter the case or express views. The child's evidence was heard by affidavit and, on the basis of that and other evidence, the Sheriff Principal found that contact was not in the child's best interests, given his opposition.

The Sheriff Principal stated that "the Sheriff had not had regard to any views which A might have held or expressed." He also indicated that he did not know whether either party in their submissions had mentioned section 11(7)(b). The Sheriff Principal commented that there had been no examination of "the relevant and, indeed, essential matters which I have had to consider."

M v M 2000 FamLR 84. Outer House, Lord Kingarth, 6/6/2000. An application for specific issue orders to allow Mrs M to remove the children to live with her in the USA. She also sought a reduction in Mr M's contact. Lord Kingarth granted the specific issue orders and a residence order to Mrs M, and a flexible contact order to Mr M. In the course of his judgement, he stated that, with reference to section 11(7)(b), it had been agreed that he would see the children individually in chambers, which he did at the end of the proof.

W v B 2000 GWD 30-1166. Sheriff Millar at Aberdeen, 20/9/2000. W sought various orders regarding his child, aged 6. The Sheriff took the view that the only statements about the child's wishes were hearsay, and tended to support each party's position, so he would not consider them.

Gault v Gault 2000 GWD 40-1474. Sheriff Harris at Aberdeen, 30/11/2000. Mr G sought contact with his children aged 11 and 7. The 11 year old had expressed a clear view against contact and it was not in her interests. The younger child was too young to express a view that it would not be in her interests to make a contact order for her alone.

2001

Conn v Conn 2001 GWD 2-80. Sheriff Pollock at Aberdeen, 9/1/2001. Mrs C sought a Residence Order for children aged 7 and 5. The Sheriff said that, given their ages, no particular weight could be attached to the views expressed, except that they had a lot of love for both parents.

Confidentiality of children's views

Both the Sheriff Court Ordinary Cause Rules 1993 (as amended) and the Child Care and Maintenance Rules 1997, provide for children's views to be treated as confidential by the Sheriff. There are no similar provisions in the Court of Session rules. From the beginning, concern has been expressed by Sheriffs about the appropriateness of holding children's views as confidential, given the normal view that all parties should have access to all information. There are five cases where this appears to have been discussed, although the cases of Dosoo and McGrath are the ones dealing with the matter in greatest depth.

Ross v Ross 1999 GWD 19-863. Sheriff Principal Bowen at Glasgow, 6/5/99. In issuing his decision, Sheriff Principal Bowen observed that Sheriffs required to be sensitive to the intrusion of the confidentiality into the principles of open justice. Care was required to give parties apart from the children an opportunity of expressing their views fully.

Dosoo v Dosoo 1999 SLT (ShCt) 86. Mrs D sought residence and Mr D sought contact for children aged 14, 12 and 4_. The two older boys entered the action as minuters. A report was prepared and the older boys specifically asked that their views be kept confidential. Their views were recorded in appendices to the main report and these were placed in sealed envelopes and not made available to Mr or Mrs D. The father wanted access to the information. The Sheriff held that the issue was contact, that their views about Mr D and contact were set out in their minutes, which Mr D had seen, and that for a child to be able to express views freely he or she had to feel confident about privacy if desired, except in very compelling circumstances.

McGrath v McGrath 1999 SLT (ShCt) 90. Sheriff Principal Bowen at Glasgow, 28/5/99. A father sought increased contact to his child, aged 7. A curator was appointed. At the Child Welfare Hearing, both parents told the Sheriff that they were prepared to leave the decision about increased contact to the child. The curator had spoken to the child, who had asked that her views would not be repeated to her parents. The Sheriff spoke to the curator in private, took into account the child's views, did not reveal them to the parties and indicated that he was not prepared to grant the order sought. The father appealed.

The Sheriff Principal held that the decision had been based not on what the child had told the sheriff, but what had been relayed to him by a third party. It was not the case that the 1995 Act had changed the law, and regard would have to be given to the forthcoming implementation of the Human Rights Act 1998. The matter was remitted to a new Child Welfare Hearing.

Oyeneyin v Oyeneyin 1999 GWD 38-1836. Sheriff Bell at Edinburgh, 11/11/99. In an application for contact, two children aged 13 and 10 wanted to express their views. A curator prepared a report of these, and the children were anxious that they should not be revealed to their parents. The Sheriff continued the application. He took the view that each party was entitled to know the basis on which the court was dealing with matters and that had to be balanced with the right to express views freely. The cases of Dosoo and McGrath showed irreconcilable approaches. There would need to be further discussion with the curator to find out why the children were anxious about disclosure. The Sheriff expressed an opinion that the welfare of the child was relevant, but was not the paramount consideration in deciding confidentiality. Reporters should take care to tell children that there could be no guarantee of confidentiality.

Grant v Grant 2000 GWD 5-177. Sheriff Principal Risk at Dornoch, 26/1/2000. In refusing an appeal where he held that there was no indication that Mr G had been denied access to the curator's report, the Sheriff Principal reserved his opinion as to whether section 11(7) of the 1995 Act or the UN Convention of the Rights of the Child created a right of confidentiality. If such a right existed, there were difficulties in resolving the conflict between it and the rights of party to disclosure.

Part II of the 1995 Act

Children's hearing cases

There are no reported cases about the views of children in children's hearing cases. Children's hearings are obliged to consider views in making decisions, and the Sheriff is obliged to consider views when considering substituting his own supervision requirement, or otherwise dealing with an appeal from the hearing. The Sheriff, the Sheriff Principal and the Court of Session are not required to consider children's views when deciding whether grounds were established or not. However, against the background of consideration of children's views, the provision allowing children to instruct a solicitor has been used in one children's hearing case, R v Grant 2000 FamLR 2. This was decided by an Extra Division on 13/1/2000, on appeal from the Sheriff Principal. The Sheriff Principal had overturned the Sheriff's finding of grounds established. The children concerned were so unhappy with this decision that they sought leave to appeal from the Sheriff Principal and were (reluctantly) allowed such leave. The Division overturned the Sheriff Principal's decision, but the children's views were not something that any of the courts had had to take into account.

Note: The Court of Session judgement of S v Principal Reporter and Lord Advocate was made in August 2001, after the completion of the case law analysis here. As reported on http://www.childrens-hearings.co.uk/echr_judgement.html:

"To this end the Court considered that the availability of legal representation is desirable in certain circumstances where it is in the interest of justice, particularly having regard to the discussion of reports and where there may be consideration of secure accommodation. It reached a view that the absence of any right to apply for legal aid (whatever the ground for referral) is incompatible with Article 6 [of the European Convention of Human Rights]. The Scottish Children's Reporter Administration has introduced an interim scheme to make papers available to children. This is recognised as a significant development in line with Convention compliance."

Emergency Orders

Russell v W 1998 FamLR 25. Sheriff Matthews at Glasgow, 26/8/97. This was a full hearing about an Exclusion Order sought by the local authority. The Sheriff granted the Exclusion Order. A curator was appointed and the evidence from her suggested that the 10-year-old daughter wanted to see the "named person" under supervision, although the Sheriff refused contact for other reasons. However there is no doubt that the Sheriff did take account of the views of the 10 year old, although he did not appear to do so in relation to the two younger children aged 6 and 4.

Parental Responsibilities Orders, Section S86

None of the few reported cases on PROs deals with children's views. Appeals have related to procedural matters, including jurisdiction. However, it is worth mentioning City of Glasgow Council v B 2000 SLT 167. This was a decision on 16 July 1998 by Sheriff Peebles at Glasgow, in relation to an application to court following on a section 16 assumption of parental rights - i.e. the old procedure, pre 1995 Act. However, the Sheriff in his judgement makes reference to the child's wishes and clearly took these into account in deciding the welfare issue.

Adoption

There are no reported adoption cases dealing with children's views. As with children's hearing proofs, and proofs in relation to PRO applications, a decision whether there are sufficient grounds to dispense with consent is a matter of evidence only, notwithstanding the terms of section 6 of the 1978 Act - views to be taken account of in "all decisions".

In City of Edinburgh Council v S 2000 SLT 147, Sheriff Morrison at Edinburgh on 16/8/99 refused to grant a freeing order. One of the factors he took into account was that the older child aged 8_ wished to continue contact with her mother, but the decision was not about taking account of the child's views. Those views were merely part of the evidence of the whole case.

Conclusion

Almost all the cases about children's views are concerned with Section 11 applications. That is on the basis of the reported cases, although many of them are dealing with other issues of evidence or procedure, and views are coincidental. Under the proceedings in Part II of the Act, or for adoption, views are not reported as an issue, because the cases are almost always concerned with evidence rather than possible later consideration of views.

In applications for PROs and adoption, a Sheriff is obliged to appoint a curator, and the court rules in turn oblige the curator to seek out whether a child has views, and if so, whether he or she wishes to express them. While the curator also has the job of looking at the case from the point of view of the child's welfare, which is not the same thing as views, nonetheless the rules make it clear that there is a recognised person who can carry out the task. This is different from proceedings under section 11, where the court may appoint a curator or reporting officer but is not obliged to do so. The appointment of a curator does not always mean that views are taken forward properly, and there are questions as to whether curators always come to grips with these issues. For instance, in City of Edinburgh Council v S 2000 SLT 147, when Sheriff Morrison refused a freeing for adoption, he pointed out that the curator had made no attempt to ascertain the child's views, at the age of 8. Whether this is actually good practice is questionable, as children of that age will have a view and may well wish to express it.

The most concerning thing about the reports on Section 11 applications is whether, in fact, every Sheriff is actually considering children's views in every case. The case of H v H 2000 FamLR 73 shows what can happen when (as it would appear) the Sheriff and the solicitors before him appear completely to have overlooked the requirements of section 11(7)(b).

It may be that the Sheriff Court Rules should insist that in making any decision about section 11 cases, part of the interlocutor always states what the Sheriff has done about children's views - e.g. "I consider the children too young to express a view"; or "I ascertained the children's views by…". The Sheriff Principal in H v H said he did not know if either party mentioned children's views in submissions to the Sheriff. It could well be argued that, even if the parties do not draw this matter to the Sheriff's attention, the court has a duty to deal with it, and Sheriffs should not overlook it.