The Voice of the Child: How Scottish Family Courts Are Listening to Younger Children

For decades in Scotland’s family law system, the “voice of the child” – the views, wishes and feelings of children affected by parental disputes has been acknowledged as an important factor in deciding what’s best for the child.

Under the Children (Scotland) Act 1995, the law required courts in family cases to consider the welfare of the child as the paramount concern and to give a child “so far as practicable” an opportunity to express their views. Importantly, the 1995 Act contains a presumption that a child aged 12 or more is mature enough to have their views taken; for younger children, it was left to judicial discretion on whether to seek their views, considering age and maturity.

Notwithstanding this presumption, the courts have for a long time held that children much younger than 12 can and should be given the opportunity to express their views. It is then a matter for the court to determine what weight to place on those views.

Children (Scotland) Act 2020

The introduction of Children (Scotland) Act 2020 (much of it still not yet in force) removes the age-based presumption, and instead assumes that any child is capable of forming a view unless the contrary is shown. Sheriffs can forego seeking a child’s view if the child clearly lacks capacity.

In addition to the domestic legislation, Article 12 of the United Nations Convention on the Rights of the Child (UNCRC) also emphasises the right of a child to be heard in family proceedings, and that this right is not unqualified.

Case Law: LRK v AG and M v C (2021)

Two recent Scottish cases have emphasised the court’s approach towards taking the views of young children.

In LRK v AG [2021] SAC (Civ) 1, the Sheriff Appeal Court found that the sheriff at first instance had erred in failing to seek the views of a six-year-old child on the basis that it would be “too difficult” to ascertain what the child thought. The court cannot simply decline to consider a young child’s views because it seems impracticable or because neither party raises the matter.

In M v C [2021] CSIH 14, the Inner House elaborated on how the courts should approach the duty to take children’s views, while also taking into account any harmful consequences of doing so. It stated that it is rarely correct to conclude that seeking a child’s views will cause unavoidable harm, and that vague concerns about exposing a child to inappropriate information are not sufficient grounds to avoid hearing them.

Our own team’s experience is that the courts are increasingly taking the views of young children on matters of great importance, including their day-to-day care arrangements and the specific arrangements for holidays. We have also experienced the court making an order for children under the age of 4 to express their views on the prospects of international relocation.

Practical Mechanisms: How Young Voices are Heard

There is no single way that a child can express their views. Key methods include:

• F9 Forms: These written forms can be sent to children to express their views confidentially to the court. While originally used sparingly with very young children, they have been used more frequently even where children are under 12.
• Child Welfare Reporters: Independent professionals – often solicitors or trained specialists such as a child psychologist – can meet with the child in a neutral setting to gather their views and report back to the court.
• Direct Interviews: In some cases, sheriffs themselves may meet with a child in chambers or a suitable setting, but this is rarely done in modern practice.
• Child-preferred Methods: Under the 2020 Act, children are encouraged to express views through whatever method they prefer.

It is important to emphasise that courts still retain discretion: a child’s views are still not determinative of outcomes. Rather, they form part of the broader assessment of welfare.

Contact us today to schedule a consultation and take the first step toward securing your child’s future.

The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any information contained in this blog, please seek solicitor’s advice from Gilson Gray.