Family Justice Modernisation Strategy

Part 2: Views of the child Background

2.1 The consultation on the review of the 1995 Act sought views on a number of areas in relation to obtaining the views of the child:

• removing the presumption that a child aged 12 or over is mature enough to give their views;
• ensuring there are a variety of ways for a child to give their views;
• providing feedback to a child; and
• regulating Child Welfare Reporters and curators ad litem.

Removing the presumption that a child aged 12 or over is mature enough to give theirviews

2.2 Part 1 of the 1995 Act requires the court, taking into account the child’s age and maturity, to give a child the opportunity to express their views. Part 1 also provides that a child who is aged 12 or over is presumed to be mature enough to form a view. When the 1995 Act was drafted the intention was not for this provision to limit children under the age of 12 from giving their views.

2.3 However, the Scottish Government has heard from stakeholders that the current presumption is meaning in some circumstances that the views of younger children are not being heard.

Ensuring there are a variety of ways to obtain the views of the child

2.4 Currently, in general, children themselves do not appear in person in section 11 cases. The views of a child currently can be taken in a range of ways. These include:

• a form (F9) to be completed by children,^[8] outlining their views;
• court ordered reports, prepared by Child Welfare Reporters;
• speaking directly and in private to sheriffs; and
• representation by a solicitor.

2.5 The FLC has recently revised the form F9 that is used to obtain the views of the child to make it more child friendly. The revised form has been in use since 24 June 2019.

Providing feedback to a child

2.6 There is no specific requirement at present for the court’s decision to be explained to the child at the centre of the case. Feedback may be provided through a parent or parents. This can place additional pressure on parents. It could also mean that the information provided to a child in some cases is not impartial.

Regulation of Child Welfare Reporters and curators ad litem

2.7 A Child Welfare Reporter can be appointed by the court either to seek the views of the child and report any views expressed by the child to the court, or to undertake enquiries into the best interests of the child and report to the court.

2.8 The existing Child Welfare Reporters are on lists held by the Court of Session and the six sheriffs principal. There are no formal training or qualification requirements for Child Welfare Reporters and their appointment to the list is not time limited.

2.9 The Scottish Government chaired a Working Group on Child Welfare Reporters between 2013 and 2016.^[9] This led to a number of outputs including a guide to the child welfare report, instructions to Child Welfare Reporters, changes to court rules (more on this below), a change in the name from Bar Reporters to Child Welfare Reporters and proposed training requirements.

2.10 In October 2015, changes were made to the Ordinary Cause Rules for family cases in the sheriff court in relation to the use of Child Welfare Reporters. A new form of interim order or decision (interlocutor) was introduced for sheriffs to complete when requesting a child welfare report. In the interlocutor making the appointment, the sheriff must specify exactly what the Child Welfare Reporter will do and what

their report should contain. At the same time the Ordinary Cause Rules were also amended to create a presumption that, so far as meeting the costs of a child welfare report were concerned, parties would share this equally in the first instance unless cause could be shown to do otherwise.

2.11 A curator ad litem can be appointed by the court to safeguard and promote the interests of a child in so far as those interests are affected by particular litigation.

Aim

Presumption that a child aged 12 or over is mature enough to give their views

2.12 The Scottish Government believes that with the appropriate support and by offering a number of ways of communicating, children, even young children, are able to give their views on who they should live with or have contact with. The Scottish Government appreciates that there may be cases where, for example, a very young child is not able to give their views.

2.13 A child who is capable of forming their view being given the opportunity to do so is supported by Article 12 of the UNCRC which provides that: “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”^[10]

2.14 Ensuring the child’s views are heard does not mean that the views of the child have to be followed in all cases. The court might decide, after considering all relevant factors, that the best interests of the child are met by an outcome that goes against the views of the child.

Variety of ways for a child to give their views

2.15 The Scottish Government considers that when seeking the views of a child the decision maker should allow the views to be given in a manner suitable to the child.

Feedback of decisions to a child

2.16 Following on from the recommendations in Power Up/Power Down^[11] the Scottish Government recognises the need for important decisions to be explained to a child, in a way that they would be able to understand, by an impartial individual.

Regulation of Child Welfare Reporters and curators ad litem

2.17 The Scottish Government considers that to ensure the best interests of the child are at the centre of any case under section 11 of the 1995 Act, Child Welfare Reporters and curators ad litem should have suitable and consistent training. This will ensure awareness of relevant matters, such as the impact of domestic abuse and coercive control.

Actions

Removing the presumption that a child aged 12 or over is mature enough to give their views

2.18 Sections 1 to 3 of the Children (Scotland) Bill remove the legal presumption that a child aged 12 or over is considered mature enough to give their views in sections 6, 11 and 16 of the 1995 Act, as well as in sections 14 and 84 of the Adoption and Children (Scotland) Act 2007 and section 27 of the 2011 Act.

Ensuring there are a variety of ways to obtain the views of the child

2.19 The Bill requires decision makers to give the child a suitable opportunity to express their views. This requires the individual or organisation obtaining the views of the child to consider a range of options on how the views are provided.

2.20 A number of the respondents to the consultation on the Review of the 1995 Act were in favour of a child support workers scheme being set up. This is supported by the outcomes of Power Up/Power Down. The Scottish Government is

aware that in certain areas of the country there are already child support workers but this is not consistent across Scotland.

2.21 The Scottish Government considers that child support workers may be useful in supporting children to give their views or to explain the outcome of decisions to children. However, to ensure the best interests of the child are met there would need to be minimum standards of training and experience set out in legislation.

2.22 There is currently work being undertaken by various parts of the Scottish Government in relation to child support workers. For example the 2011 Act allows the Scottish Ministers to make provision in relation to children’s advocacy services in the Children’s Hearings system.

2.23 The Scottish Government is concerned that establishing a system of child support workers at the present time may result in children who are involved in Children’s Hearings, a case under section 11 of the 1995 Act and a criminal case having multiple child support workers appointed. This would not be in the best interests of the child. In addition, it may require individuals who wish to be on the list of child support workers to be registered multiple times.

2.24 Therefore, the Scottish Government proposes to consider further whether to introduce child support workers to ensure that any new system would work with existing systems and other proposed work.

Requiring the court to explain decisions to a child

2.25 Section 15 of the Bill requires the court to consider whether it is in the best interests of the child to receive an impartial explanation of certain decisions in cases under section 11 of the 1995 Act.

2.26 Where the court considers it in the best interests of the child to provide an explanation then they must arrange for this to either be done by the court itself or by appointing a Child Welfare Reporter. Not all decisions would need to be explained as there are often a number of Child Welfare Hearings which may only be procedural.

Regulation of Child Welfare Reporters and curators ad litem

2.27 Section 8 of the Bill establishes a register of Child Welfare Reporters which will be maintained by the Scottish Ministers. Only a registered Child Welfare Reporter will be able to be appointed by a court.

2.28 Section 13 of the Bill also establishes a register of curators ad litem to be appointed in cases under section 11 of the 1995 Act. This will be a similar register to that of Child Welfare Reporters.

Implications for court rules

2.29 The Scottish Government will produce a paper for the FLC in 2020 on implications of the Bill in relation to matters such as rules of court.