In court actions considering children, the obvious person whose thoughts matter is the child. The Children (Scotland) Act 1995 states that a child of 12 years old or more is presumed to have sufficient age and maturity to give a view on the proceedings. For those under this age, there tends to be more discretion in the courts, and certainly the views of younger children are rare to encounter in practice.
If the child's view is to be sought, there are a number of options open to practitioners and the court as to how this can be done. The Sheriff can appoint a child welfare reporter (usually an independent solicitor) to speak to the child. The Sheriff can alternatively take the views of the child him or herself by meeting with the child and speaking to them directly.
A further way is for the child's views to be taken by way of a Form F9 sent to the child for them to complete. This would be done at the beginning of the court action unless the court has dispensed with the need to serve on the child due to their age. However the F9 forms have long been thought of as outdated and not fit for purpose by many practitioners. The wording in them is simply too legal and potentially difficult for a child to understand.
Changes to the format for seeking a child's view – new F9s
This is all about to change with the introduction of the Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019. This Act was placed before Parliament on 29 March 2019 and will come into force on 24 June 2019. It introduces changes to the way Form F9s are served and also introduces a new format for the document.
The new form was the work of the Family Law Committee of the Scottish Civil Justice Council who consulted children and young people, and organisations who work with and represent them. Advice was sought on how the existing forms could be improved. The new forms have a more colourful and child friendly look. In addition to amending the format of the existing form, the new legislation also makes amendments to the point in which forms can be sent to a child, who should send it and also ensures that the child's views can be sought after a final Decree is granted by the court, if further court proceedings are raised after a final determination.
In terms of the new rules, these specify which party should send the F9 and when. On raising/defending proceedings, the solicitor must also submit a draft of the F9 to the Sheriff for approval before proceedings can commence. The court therefore must be satisfied the draft form has been prepared appropriately before it is sent to the child.
The rules also state that the F9 should not be sent to the child until it is known whether the action will be defended. This is to prevent the potential difficulty under the current rules in which the child could receive an F9 from both parties, thus having to complete 2 forms. If both parties are seeking orders in relation to the child, both agents must draft F9s, these both must be approved by the court and they then must be combined and one F9 must be sent by the pursuer to the child. The Sheriff can order a Form F9 be sent to a child at any time, for example if a court action had been raised and it was not appropriate to take the child's views as the child was too young but later in the action, it would be more appropriate.
The Family Law Committee had concerns that in many cases parties were simply asking the court to dispense with the F9 because the child was under 12. The Committee are keen to bring a change to this. They consider that many children younger than 12 are capable of filling in a form to express their views even if they need help to do so. The new Rule 33.7A(2) provides therefore that where the Pursuer considers it be inappropriate to send a Form F9 to the child then Initial Writ must contain the usual crave to dispense with intimation and state the reasons why it is inappropriate to send an F9 - for example, the child is under 5 years old.
Future reforms relating to views of children
The new F9s will be a welcome change, however it is not always an appropriate way of obtaining a child's view. The Scottish Government is looking to bring in a Family Law Bill which will likely contain other provisions on how to take the views of children.