What weight does your child’s opinion have in Court?

Separation is stressful for all those involved, especially children. 

When Court proceedings are necessary, parents are understandably anxious that their children’s wishes are listened to by the Court.

There are lots of things that need to be considered when parents split up from where the child should live, how much time they spend with each parent and sometimes, if the child should go to a different school.

In Scotland there is legislation in place aimed at putting children at the centre of decisions that affect them. Children’s views must be heard and respected by the Court in family cases and there are a variety tools available during child welfare cases in order to obtain their wishes and feelings.

The starting point for taking a child’s views is the form F9 – also known as child court intimation. Changes were brought in a few years ago to ensure that these forms were more engaging and easier for children to understand. The forms are now colourful and the language used is child-friendly.  They are accompanied by a letter which advises the child of their right to give a view if they wish to do so.   

New rules were also introduced with important provisions about the point at which the form F9 should be sent to the child. The form will only be sent once it is known whether the action will be defended, preventing the child being sent two forms seeking their views, which can be disheartening for some children.

If a child is deemed to be old enough to understand the Court proceedings then their views will be taken into account. Previously these forms were aimed at children aged 12 and over as it was at this age that children were considered mature enough to give their views on cases concerning their welfare. However in recent years, changes have been made to ensure that views from children from as young as 5 can now be taken into account.

Completing a form is not necessarily always the most appropriate way to obtain a child's views (for example, it may not be appropriate to send a form to a child with additional needs).  It must also be recognised that a child can of course be unduly influenced by a parent or another adult as to what to write on the form (even though the child is encouraged to fill in the form in the presence of an impartial trusted adult such as a teacher). Additional provisions are expected to be introduced and further progress is needed to ensure the voice of the child is always heard.

The Sheriff will use all the evidence they have before them to decide what Court Orders are in the child’s best interests taking a number of factors into account, including the child’s wishes.  The Sheriff will also consider factors such as:

·      the child’s age, sex, and background 

·      the child’s physical, emotional and educational needs

·      the likely effect on the child of any change in his/her circumstances

·      whether the child is at risk of harm or suffering

·      how capable the parents are in meeting the child’s current and future needs

No child wants to be put in the middle of two arguing parents and going to Court should only be used to resolve issues relating to the child’s welfare as a last resort.   Parents could consider trying to resolve disputes through mediation or attending ‘parenting apart’ classes.  However if Court is the only option, then it is helpful to know that a child’s views are taken into account.

Louise Gillies who heads up our Family Law team at Ness Gallagher is a member of the Family Law Association, is an Accredited Mediator in Family Mediation and is also a member of CALM Scotland (Comprehensive Accredited Lawyer Mediators). Our knowledge and experience in the field of family law will ensure you are in good hands and that any conflict is handled as harmoniously and efficiently as possible.