Part 1 of the Children (Scotland) Act 1995: review

Part 2: Obtaining the views of a child

Introduction

2.01 In this section of the consultation, we are seeking your views on:

• The potential removal of the presumption that a child aged 12 or more has sufficient age and maturity to express a view;
• How the court obtains the views of a child in section 11 cases;
• How feedback is provided to a child on the court’s decision in section 11 cases; and
• Regulation of child welfare reporters and curators ad litem in section 11 cases.

Background

2.02 Article 12 of the UNCRC provides that

“1. 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.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

2.03 As mentioned below, Part 1 of the 1995 Act already makes provision on the voice of the child being heard and on the court having regard to any views expressed by the child. The question arising is whether improvements could be made so the child’s voice is heard better.

2.04 Ensuring the child’s voice is 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.

2.05 In general, children themselves do not appear in person in section 11 cases. However, there are a variety of ways used by the courts to obtain the views of a child. These include:

• A form (F9) to be completed by children, outlining their views;
• Court ordered reports, prepared by child welfare reporters;
• Speaking directly and in private to sheriffs; and
• Representation by a solicitor.

2.06 The court may also order that a curator ad litem be appointed to represent the child’s interests.

2.07 In preparing this part of the consultation, we have taken account of a recently completed project by Scottish Women’s Aid and the Children and Young People’s Commissioner Scotland called Power Up/Power Down ^[10] .

2.08 This project explored court ordered contact processes and decisions. It involved 27 children and young people who have lived with domestic abuse. It came up with a number of recommendations. The main ones in relation to how the voice of the child is heard are:

• Removing the presumption that a child aged 12 or above is of sufficient age and maturity to form a view in a case;
• A requirement on the court to actively consider what is in the best interests of a child. There is already a duty on the court to do this under section 11;
• The introduction of a trained person to support a child through the court process; and
• Ensuring a child receives feedback on the outcome of the case.

The potential removal of the presumption that a child aged 12 or more has sufficient age and maturity to express a view

Background

2.09 Section 11(7) of the 1995 Act provides that the court, taking account of the child’s age and maturity, shall so far as practicable give the child an opportunity to indicate whether they wish to express their views; give the child an opportunity to express their views if they so wish; and have regard to any such views. Section 11(10) of the 1995 Act goes on to provide that a child 12 years of age or more shall be presumed to be of sufficient age and maturity to form a view.

2.10 There is a similar provision in section 6(1) of the 1995 Act which states that a person must have regard so far as practicable to the views of the child concerned when they are fulfilling a parental responsibility or exercising a parental right. Section 6 also provides that a child 12 years of age or more shall be presumed to be of sufficient age and maturity to form a view.

2.11 Section 27 of the Children’s Hearings (Scotland) Act 2011 (the 2011 Act) has an equivalent provision about the responsibility of the Children’s Hearing or the sheriff to take into account the views of the child. The 2011 Act also includes the presumption that a child 12 years of age is of sufficient age and maturity to form a view.

2.12 We are seeking your views on whether the presumptions in section 11 and section 6 of the 1995 Act and section 27 of the 2011 Act that a child 12 years of age or more is of sufficient age and maturity to form a view should be removed.

2.13 Some stakeholders have said that this presumption has the practical effect of stopping children under 12 with capacity from expressing their views when they are capable of doing so. This is because the presumption has been interpreted to mean that children under 12 are not capable of expressing their views. This was not the intention when these sections were introduced.

2.14 Sections 11(9) and (10) of the 1995 Act also include a presumption that a child 12 years or more is presumed to be of sufficient age and maturity to form a view on whether they want a lawyer. This presumption is in line with section 2(4A) of the Age of Legal Capacity (Scotland) Act 1991 which provides:

“A person under the age of sixteen years shall have legal capacity to instruct a solicitor, in connection with any civil matter, where that person has a general understanding of what it means to do so; and without prejudice to the generality of this subsection a person twelve years of age or more shall be presumed to be of sufficient age and maturity to have such understanding.”

2.15 We are only consulting on removing the presumption that a child aged 12 or more is presumed to have sufficient age and maturity to express a view. That reflects that children can often express views at a young age, particularly if provided with support. This consultation is not proposing that any changes be made to presumptions on when children and young people can instruct a solicitor, which has different implications to just expressing a view.

2.16 In other countries, such as New Zealand, there is no age limit for the courts seeking views of the child. Views are sought based on an assessment by the courts of the child’s maturity.

Pros/Cons

2.17 The main advantage of removing the presumption that a child 12 years of age or more is of sufficient age and maturity to form a view is that this may increase the number of children under the age of 12 whose voices are being heard. However, care would need to be taken to ensure that tests of sufficient capacity did not end up being more restrictive than the current provisions.

2.18 Research shows that allowing children to express their views in court cases can lead to better outcomes for the child and can lead to higher rates of satisfaction amongst children of the outcomes ^[11] .

2.19 Removing the presumption would appear to be in line with article 12 of the UNCRC given that it may increase the number of under 12s that are able to express their views to the court. Removing the presumption also appears in line with General Comment 12 by the UN Committee on the Rights of the Child on the right of the child to be heard ^[12] .

2.20 This option would require further work on how the voice of a younger child can be taken into consideration. This includes steps to ensure that young children would not be recipients of distressing materials relating to their case. There could be negative impacts on children where they have expressed a view but the judge decides a different outcome is in their best interests.

2.21 This emphasises the importance of the reasons for decisions being explained to the child as raised in the Power Up/Power Down project. Giving feedback to the child on the outcome of a court case is discussed in paragraphs 2.47-2.53 of this consultation. In some cases as well a child may choose not to express a view.

Question 1): Should the presumption that a child aged 12 or over is of sufficient age and maturity to form a view be removed from sections 11(10) and 6(1) of the 1995 Act and section 27 of the Children’s Hearings (Scotland) Act 2011?
Please select only one answer.
(a) Yes – remove the presumption and do not replace it with a different presumption.
(b) Yes –remove the presumption and replace with a new presumption based on a different age.
(c) No – Leave the presumption as it is.
Why did you select your answer above?

How the court obtains the views of the child in section 11 cases

Background

2.22 There are a number of ways that a child can express their views to the court.

The F9 form

2.23 One way the voice of the child is currently taken into account in Scotland is by the form F9 ^[13] . This form is prescribed in court rules and is designed for the child to complete themselves. The form is handed to the sheriff in a confidential envelope and the sheriff decides whether the content should be disclosed.

2.24 Research in 2000 suggested that in 26% of cases where notice of a legal proceeding was given to the child (intimation) ^[14] , a form F9 was attached to the court process. In the Power Up/Power Down project none of the children involved were aware of the form.

2.25 Following a policy paper by the Scottish Government on the voice of the child in December 2015 ^[15] , the FLC are currently working on a revised version of the F9 form to make it more child friendly.

Child welfare reporters

2.26 Another way often used to gain the views of the child is by using a child welfare reporter. Child welfare reporters are appointed by the court to report on the welfare of the child generally or to specifically obtain the views of the child. Most child welfare reporters are family lawyers, but some come from other backgrounds such as social work. Child welfare reporters are discussed in more depth at paragraphs 2.54 to 2.75 of this consultation.

Speaking to the judge or sheriff

2.27 Judges can also speak directly with a child. Use of this option varies from country to country. For example, in New Zealand, judges are encouraged to speak with the child directly. However, in Australia, judges generally do not engage with the child ^[16] .

2.28 In Scotland, a sheriff can decide whether they want to speak directly to a child. Research from 2004 found that 17% of judges in Scotland interviewed were willing to speak directly with a child ^[17] . The majority of the children involved in the Power Up/Power Down project said that they were keen to talk directly to the sheriff involved in their case.

Approaches in other jurisdictions

2.29 In a number of countries either solicitors or social workers are employed to seek the views of a child. Generally, the lawyers or social workers meet with the child and produce a report that indicates their views on what would be in the best interests of the child. This is similar to the role of a child welfare reporter in Scotland.

2.30 In Australia, the most common method is through a report prepared by a family consultant and judges very rarely meet with a child. A family consultant is a psychologist or social worker and they meet with a child and each parent. Their report includes the views of the child and their recommendations about what is in the best interests of the child. There is also the option for the court to appoint an Independent Children’s Lawyer who is required to decide what is in the best interests of the child and are not the child’s legal representative. This role is similar to the role played by a curator ad litem in Scotland ^[18] .

2.31 In New Zealand, a lawyer is appointed in every children’s case that is likely to proceed to hearing unless the lawyer would serve no useful purpose ^[19] . The lawyer is there to report on the best interests of the child. However, they have to meet with a child to find out their views except in exceptional circumstances. The lawyer also has the responsibility of acting as the means of communication between a child and the judge and has to explain the content of any expert report and the outcome of a court judgement to the child.

2.32 In England and Wales, the Family Court Advisors employed by CAFCASS are social workers and are responsible for carrying out initial safeguarding checks when a case is lodged in the court. They also prepare reports for the court if ordered to do so by a judge. In preparing the report, they will meet with both parents, any other relevant adults and the child involved. The report focuses on the best interests of a child rather than necessarily the views of a child.

Child support workers in section 11 cases in Scotland

2.33 Power Up/Power Down also noted that in contact cases:

• It is “Good to have adults involved who are helping – but not too many – and the children need to know what they are there for.”
• “Children need to know what is happening. When, why and what is coming next.”
• “Children need to know why decisions have been made – and they need that information either directly or explained through a trusted adult.”
• “Some children need extra help to talk about their worries and experiences.”
• “Everything needs to be clearer: language needs to be right for children, visuals need to be used; helpers need to be there to help understanding if needed.”
• “Opening up to someone you already have a relationship with is much better than meeting someone as one-off.”
• “Children need to be told what the decisions made are, why they have been made and what that means for the child.”

2.34 One potential option for meeting these concerns would be child support workers. We are aware that workers of this nature (sometimes referred to as children’s advocacy services or children rights officers) are already in place in some parts of Scotland ^[20] . However, there is not a uniform service across the country.

2.35 In relation to Children’s Hearings, implementation of the relevant sections of the 2011 Act relating to children’s advocacy services for these cases is currently being taken forward and could potentially be extended at a cost.

2.36 Child support workers in section 11 cases:

• Could be managed by a contractor appointed by the Scottish Government (similar to the process for safeguarders in the Children’s Hearings System explained in paragraph 2.66);
• Could advise the child about the court process and help the child provide views to the court (eg by sitting in on any interviews with a child welfare reporter);
• Would not enter formally into the court process and would not be able to act as a legal representative for the child and would not have to be legally qualified. They would be there to support the child and explain things to the child rather than be a party to the court case; and
• Could have the duty of outlining court decisions to the child (this issue is explored in more detail in paragraphs 2.47 to 2.53 below).

Pros and Cons

2.37 We consider it is important that if a child is able to do so and wishes to do so that they should be given every opportunity to be heard. That is in line with article 12 of the UNCRC and with the existing provisions of section 11(7(b) of the 1995 Act. Even young children, with support if necessary, are capable of expressing views.

The F9 form

2.38 The Form F9 is a useful tool for courts to receive the views of a child. It may perhaps also be a less stressful way for a child to offer views. There is, for example, no need to go to the court as there would be if the child spoke directly to the sheriff.

2.39 The form needs to be child friendly and tailored to the needs of the child. As indicated above, the FLC are currently working on a revised version of the form to make it more child friendly.

2.40 The child may need support when completing the form. There is a risk that a parent may influence a child in their completion of the form.

2.41 During the recent work by the FLC on improving the form F9, some children said that they would prefer other ways of expressing their views rather than a form ^[21] .

Child welfare reporters

2.42 The option of using child welfare reporters who may be either a solicitor or a social worker has the benefit of it being an independent person who is seeking the views of a child and offering recommendations on the best outcomes for the child. There is a further discussion in paragraphs 2.54 to 2.75 below about the regulation of child welfare reporters (and of curators ad litem).

Speaking directly to the judge or sheriff

2.43 Children may feel empowered by speaking directly to the judge or sheriff as they are speaking to the decision maker. However, a child would need to be adequately supported to do this and would need to be able to understand the court process.

2.44 A judge or sheriff will, inevitably, only be involved in a child’s life for a short period of time. And a child speaking directly to the judge or sheriff does take up judicial time.

Child support workers

2.45 As outlined above, child support workers could help explain the court process to the child, support the child when the child offers views to the court and provide feedback to the child on the court’s decision.

2.46 However, establishing a system of child support workers for section 11 cases across Scotland:

• would have significant cost implications. As a broad estimate, two per local authority area costing around £50,000 a year each would cost around £100,000 a year per local authority area or £3.2 million a year for Scotland as a whole. However, we appreciate that there might be variations between local authorities;
• may lead to more people being involved in the court case which may not be in the child’s best interests;
• would raise issues of training and potential conflicts of interest, supervision and accountability; and
• would take some years to set up.

Question 2): How can we best ensure children’s views are heard in court cases?
Please select as many answers as you want.
a) The F9 form.
b) Child welfare reporters.
c) Speaking directly to the judge or sheriff.
d) Child support workers.
e) Another way (please specify).
Why did you select your answer(s) above?

How feedback is provided to a child on the court’s decision in section 11 cases

Background

2.47 There is no requirement at present for any person to provide feedback to a child on a court’s decision. As a result, in most cases feedback is not provided to a child as they are not a party to the proceedings. There may be feedback from the parents or from any support worker the child may have had.

2.48 The Power Up/Power Down project found that children are keen to know why decisions have been made and said that information should be explained to them either directly or through a trusted adult.

2.49 Feedback needs to be in language that is appropriate to the age and maturity of the child. Feedback is especially important where the court reaches a decision that is not in line with a child’s views.

2.50 One option, as discussed in the previous section of the consultation, would be for a person such as a child support worker to provide feedback to the child on the court’s decision. The child support worker would need to apply to the court to receive a copy of the outcome of the decision.

2.51 Another option would be for the child welfare reporter to be given this responsibility as they have already been seeking the views of the child.

2.52 We are aware of a recent case in Scotland where the sheriff wrote to the children to explain the decision of the court ^[22] .

Pros/Cons

2.53 As matters stand, there is no duty on anybody to explain the court’s decision in a section 11 case to a child. This may perhaps be a function for a child support worker or child welfare reporter. The benefit of this being done by either of these people is that a child is likely to have built up a relationship with them and they may be best placed to explain the outcome of the case. However, a drawback of using a child support worker is that providing a trained person to support a child would require significant investment as this currently is not available universally across Scotland. Providing feedback could be added to the functions of child welfare reporters if the role is set out in legislation as discussed in paragraphs 2.54 to 2.75.

Question 3): How should the court’s decision best be explained to a child? Please select only one answer.
a) Child support worker.
b) Child welfare reporter.
c) Another option (please specify).
Why did you select your answer above?

Regulation of child welfare reporters and curators ad litem in section 11 cases

Background

2.54 Child welfare reporters are appointed by the court to report on the welfare of the child generally or to obtain the views of the child. Curators ad litem are appointed by the court to represent someone who lacks capacity such as a child. We understand there are approximately 400 child welfare reporters in Scotland appointed across the six sheriffdoms.

2.55 People seeking to be a child welfare reporter may be appointed to lists held by the Court of Session and by the six Sheriffs Principal (for the Sheriff Courts in their respective Sheriffdom). The presiding judge or sheriff can then appoint a child welfare reporter on the appropriate list to report on a case.

2.56 Individuals can apply to the Sheriff Principal of a sheriffdom to be added to the lists of child welfare reporters and curators ad litem. The appointment criteria is set by each Sheriff Principal. For example, we are aware that one Sheriff Principal requires all child welfare reporters to have five years’ practical experience of family law whilst others only require a person to have extensive family and child law experience.

2.57 Most child welfare reporters are practising solicitors and many of them are family lawyers. However, some have other backgrounds such as in social work or in teaching.

2.58 Generally, the appointments are not for a fixed period of time and finish when a person asks to be removed from the list. The procedure for removing a child welfare reporter from office is a matter for each Sheriff Principal. We are not aware of any cases where a child welfare reporter has been removed from the list for misconduct. Complaints against child welfare reporters are infrequent and tend to be raised with the Sheriff Principal.

2.59 We understand that child welfare reporters do not have regular appraisals or any other monitoring or review except to ensure that their Protecting Vulnerable Groups registration is maintained.

2.60 In general, there is no requirement for any specific training. However, we are aware that certain Sheriffs Principal have organised training for their child welfare reporters . The Scottish Government wrote last year to the Faculty of Advocates, the Law Society of Scotland, the Family Law Association and Social Work Scotland to ask what they could do to provide training for child welfare reporters .

2.61 From 2013 – 2015, the Scottish Government chaired a working group to examine the role of child welfare reporters ^[23] . This working group led to a number of outputs including a guide to the child welfare report ^[24] , instructions to child welfare reporters ^[25] , changes to court rules (more on this below), a change in the name from Bar Reporters to child welfare reporters and proposed training requirements ^[26] .

2.62 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.

2.63 In 2017/18, figures from SLAB showed that it funded approximately 1596 child welfare reports for contact and residence cases at a total cost of £3.3m million. This is a 27% reduction on the costs in the previous year. This reduction appears to be linked to the new court rules on child welfare reporters on providing reporters with more direction. The report by SLAB shows that use made of child welfare reporters across Scotland varies considerably and there is no consistent pattern to their use ^[27] .

2.64 Being a child welfare reporter is an important, difficult and challenging job. We are of the view that regulation is required to ensure that reporters are fully trained in the tasks they need to carry out and to ensure that the quality of reports is consistently high.

2.65 We are therefore seeking views on options to change the current system. We consider that there are two broad options in this area. Both would involve laying down in primary legislation what the role of reporters is (i.e. to obtain the voice of the child or to report more generally on the child). Both options would also involve the repeal of section 11 of the Matrimonial Proceedings (Children) Act 1958 ^[28] on local authority reporters as regulation of child welfare reporters would also extend to local authority reporters.

2.66 The first possible approach would be the creation of new arrangements that would manage and provide training for child welfare reporters . This could involve arrangements similar to what happens now in relation to safeguarders in the Children’s Hearings System. In 2013, responsibility for safeguarder recruitment, appointment and administration was transferred from local authorities to the Scottish Ministers. A national voluntary organisation, Children 1st, was awarded the contract to administer a national Safeguarders Panel.

2.67 The second possible approach would build more on existing arrangements. Under this option:

• The proposed primary legislation would contain powers for the Lord President and the Sheriffs Principal to appoint people to the lists so they can carry out the functions of a child welfare reporter when asked to do so by the court;
• When appointing persons to the lists, the Lord President and the Sheriffs Principal would have to be satisfied that the reporters met standards [eg qualifications, experience and training] laid down by regulations; and
• The Lord President and the Sheriffs Principal could then remove people from the lists if they cease to meet the standards or if, for example, a person dies, retires, asks to be removed or is no longer a fit and proper person to be a child welfare reporter.

2.68 This part of the consultation has focused primarily on child welfare reporters as they were the subject of our working group. However, if either of the options to regulate child welfare reporters were taken forward then we would propose that this be extended to curators ad litem appointed in relation to cases under section 11 of the 1995 Act.

2.69 If statutory provision should be made in respect of curators ad litem appointed under section 11, we might also take the opportunity to change the name of the appointment from curator ad litem to something like Child Interests Solicitor. The term curator ad litem is likely to mean little to children, or litigants. We consider that language used in court should be as clear, precise and simple as possible, to help children and litigants.

Pros/Cons

2.70 There are number of advantages and disadvantages of the options outlined above.

2.71 The main advantage of both options is that they would ensure that child welfare reporters meet a minimum standard upon appointment and could be removed if they don’t meet the standard. This would be in the best interests of the child.

2.72 The first option would be a more expensive option as it would involve new arrangements for the appointment of child welfare reporters. This may also lead to certain child welfare reporters and curators ad litem resigning as this occurred when the safeguarders system was centralised.

2.73 However, the first option would ensure consistency of the service and that child welfare reporters and curators ad litem are appropriately trained, which would benefit children. This could also allow some standardisation of the costs of child welfare reports. It would also remove costs in this area from the legal aid budget. This option would allow the cost of child welfare reports to be closely controlled.

2.74 The first option could mean that those individuals who do not currently qualify for legal aid for a child welfare report may be entitled to the child welfare report for free. However, there are relatively few cases where the child welfare report is not funded by legal aid so the cost implications of this would be low.

2.75 The second option (building on the existing procedure) would ensure more consistency across Scotland, which would be in the best interests of the child. However, this option would not allow for any standardisation of the costs of the child welfare report. In addition, there would be resource implications for the SCTS in relation to the management of the lists.

Question 4): What are the best arrangements for child welfare reporters and curators ad litem?
Please select only one answer.
a) There should be no change to the current arrangements.
b) A new set of arrangements should be put in place that would manage and provide training for child welfare reporters. (option 1 described above).
c) The existing arrangements should be modified to set out minimum standards for child welfare reporters and allow the Lord President and Sheriffs Principal to remove them from the lists if the reporters cease to meet the necessary standards. (option 2 described above).
d) Another option (please specify)
Why did you select your answer above?