HM Insights

It's good to talk/write/draw? Letting a child's voice be heard in family court proceedings

A recent court decision looked at the practical ways in which the views of children are taken by and considered in court proceedings.

Being aware of the range of options available to the Court when taking a child's view, together with good legal advice, can help parents make an informed choice about how their child's voice can be heard in a way that is tailored to their needs and which minimises the potential for distress.

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Background to the case

In X v Y, at the Civil Appeal Court, the parents (Father X and mother Y) of two children aged seven and four asked the court to make decisions about a number of matters involving their children. The parents could not agree with which parent the children should live, where they should live, which school they should attend or how often they should see the parent that they did not live with. There were allegations by one parent of domestic abuse, which were denied by the other.

During the proceedings, the Sheriff made an order about how and whether the views of the children should be taken and this formed part of the appeal to the Civil Appeal Court.

Children's views in court proceedings

In cases where a Sheriff is asked to make orders regulating arrangements for children, the relevant legislation (The Children (Scotland) Act 1995, section 11(7)(b)) provides that, taking account of the child's age and maturity and as far as is practicable, he or she must be given the opportunity to indicate whether they have a view and whether they want to express that view. If the child does have a view that they want to express then they should be given an opportunity to do so and the Court shall have regard to those views.

In X v Y, the mother asked the Sheriff to order that the children be made aware of the court action and asked to provide their views by way of a Form F9 being sent to them. A Form F9 is a standard form, completed by a solicitor in child-friendly language, which informs the child what each parent is asking the court to do and asks them whether they have any view that they wish to express. The form gives the child the option to nominate a friend or relative to tell the Sheriff about their views or simply to write them down on the form.

The Sheriff was made aware that each of the children had spontaneously spoken about their views to adults in their lives and it was clear that they did have a view to express (always subject to being balanced against their age and ability to understand the proceedings). The seven-year-old was said to have expressed a view in the form of a drawing which was said to be adverse to the father.

The father objected to this course of action, particularly in relation to the four-year-old child who could not read or write. The father was concerned that the children's views could be manipulated by their mother because they were living with her.

The Sheriff decided that each of the children should be given the chance to complete a Form F9. In the case of the younger child, the Sheriff was assured that she was articulate and capable of forming a view and that even if she could not write, she could draw.

The appeal

The father appealed against the Sheriff's decision to have both children complete a Form F9.

Parents involved in a court process can often be apprehensive about the use of a Form F9 to obtain the views of a child. In X v Y, the Civil Appeal Court recognised that there are often arguments about how useful the exercise of filling in the form actually is in ascertaining views. In particular, parents can be concerned that children have been influenced in filling in the form by the other parent. There can be a worry that filling in the form will distress a child.

The Civil Appeal Court emphasised in this case that the Form F9 is only one of the tools available to the court to ascertain a child's views. The key issue is identifying the most practical way to proceed.

In this case, the Civil Appeal Court did consider that there might be more practicable ways to secure the views of the children. The Civil Appeal Court expressed considerable doubt about the efficacy of serving such a form on a four-year-old who could not read or write. They ordered that a Child Welfare Reporter should speak to the children and that their views could be expressed in this way.

What does X v Y mean for parents?

X v Y gives an important reminder of the value of thinking carefully about how to allow a child to give their views in a court process. One size does not always fit all and what might work even for one sibling, for example, might not work for another.

It will always be better for the child if a reasoned argument can be given as to why a certain method would be a good fit for them and it is important to think about the stage at which a child is asked for its views – sometimes it is not appropriate or helpful to obtain views when proceedings are at an early point.

If a parent is worried that filling in Form F9 might not be the best way to find out whether the child has a view, then X v Y reiterates that this is not the only way. Form F9s remain useful and often very helpful for children and can for example be sent to a school which lets the child receive and complete the form in a more neutral venue, with the support of a trusted teacher, if appropriate. Sometimes a discussion with an experienced Child Welfare Reporter is a better way, or indeed sometimes it might be more appropriate to let the child prepare a drawing (this was not disapproved of in X v Y).

Being aware of the range of options available to the Court when taking a child's view, together with good legal advice, can help parents make an informed choice about how their child's voice can be heard in a way that is tailored to their needs and which minimises the potential for distress.

Get in touch with our family law specialists

Our team of family law specialists are experienced in helping parents navigate the decision making process and would be happy to discuss your options with you.

For a confidential chat, call us on 0141 227 9545 or find our more about service on our family page.