Separation – Is Anyone Listening To Me?

In a separation involving children, the parties must decide what arrangements should be put in place for any children of the relationship. They must decide where the child should live and how much time they should spend with either parent. Many people are able to come to a mutual decision on this and decide jointly what they believe is in the best interests of their child. There are, however, occasions where the parents, cannot agree on the arrangements and the Court has to become involved. The paramount consideration for the Sheriff in these cases is what is in the child’s best interests. But to what extent does the child get to have a say?

The current position contained within the Children (Scotland) Act 1995 states that from the age of 12 a child’s views should be sought. Below this age, it is a grey area and is a matter for the Sheriff to decide. The views of the child can be taken in various ways including via a child welfare reporter (an independent solicitor appointed by the Court to gather more information), the Sheriff can speak to the child directly or by a Form being sent to the child for them to complete (called a Form F9).

For a number of years, it has been widely accepted that the Form F9 required to be changed to be more child and user friendly. Thankfully, this matter has now been reviewed by the Scottish Civil Justice Council and new rules will come into effect from 24 June 2019. The Council have not only revamped the form making it easier for children to understand and complete, they have also considered when such a form should be sent, who it should be sent to and when a child’s views should be sought on more than one occasion.

The new rules state that a form will only be sent to a child once it is known whether the action is being defended or not. If both parties are seeking an order regarding the child, only one form will be sent to the child outlining both positions. In addition, the Sheriff will now review the draft form before it is sent to the child to ensure that it is appropriate in the circumstances.

The Sheriff will also have the discretion to send a Form to the child at any time. This may be because the child is now older than when proceedings first started and so more able to provide a view or that circumstances have changed and the Sheriff wants an update from the child. This would also be applicable if a parent was seeking a variation to an order after final decree has been granted.

In addition, the new rules have considered at what age a child’s views should be obtained. In many cases parties report that the child has a particular view on the matter (especially if it is in accordance with their position), however, if the child was under 12 there could be a reluctance to seek this view with a Form F9. This can leave the child feeling as though no one is listening to them in a decision that will have a huge impact upon them. The new rules now state that if the parent “considers that it would be inappropriate to send the Form to the child (for example, where the child is under 5 years of age)” the party must crave to dispense with service of the form on the child and provide reasons for this. It appears therefore, that there will be a presumption in favour of the child’s views being sought rather than not.

Going forward there is likely to be a Family Law Bill put before the Scottish Parliament looking at the wider issue of other ways a child’s views can be taken, however, in the meantime, these small changes are likely to make a difference to a child feeling like they have been heard through the process.

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