Posted On: 14 October 2011
Author: Janys M Scott QC
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This presentation was given at Fife Law Centre's seminar on 'Children's Rights and the Law' held in Kirkcaldy on 12 October 2011.
"my dad says that if we stay with him we can have a dog"
United Nations Convention on the Rights of the Child, article 12
 Do we really have to listen to children when making decisions about them? The answer to that question is yes. Whether or not we believe in equality for children, or think that justice demands that we listen, the law on the matter is settled. The die was finally cast in the United Nations Convention on the Rights of the Child. This Convention was adopted by the General Assembly of the United Nations on 20 November 1989 and ratified by the United Kingdom on 16 December 1991. Every member state of the United Nations has now ratified the Convention, save for the United States of America and Somalia. This Convention, unlike European Convention on Human Rights, does not have the force of law in the United Kingdom, but by ratifying the Convention on the Rights of the Child the United Kingdom, including Scotland, committed itself to bring its law into conformity with the Convention. For present purposes the most important article is article 12, which provides:
“(1) States Parties shall assure to the child who is capable of forming his own views the right to express these in all matters affecting the child, the views 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.”
Children (Scotland) Act 1995, section 11
 In this presentation I propose to look at hearing children in the context of actions relating to parental responsibilities and parental rights. The Children (Scotland) Act 1995 required to put article 12 into effect. It did so by requiring parents to have regard to children’s views (section 6), and then went on to require courts to have regard to article 12 principles, by stating in section 11(7)(b)
“... in considering whether or not to make an order under subsection (1) above and what order to make, the court—
... (b) taking account of the child's age and maturity, shall so far as practicable—
(i) give him an opportunity to indicate whether he wishes to express his views;
(ii) if he does so wish, give him an opportunity to express them; and
(iii) have regard to such views as he may express.”
S v S
 The Inner House of the Court of Session looked at this section in S v S 2002 SC 246. In S a mother wanted to take the parties’ only child to Australia, where she was due to go on secondment for three years to take up a promoted post. Father objected. Neither wanted to tell the boy, who was only seven, about the dispute. The litigation dragged on until he was nine. His views were still not sought. The sheriff decided he could go. The father appealed. The sheriff principal refused the appeal. The father appealed again, to the Inner House of the Court of Session. By this time the child was rising ten and the father was founding on the failure to seek the boy’s views. The Extra Division allowed the appeal. The following points emerge from their decision:
- The court requires to discharge its duty under section 11(7)(b) at the time the relevant order is made, and if necessary must do so ex proprio motu.
- So far as affording a child the opportunity to make known his views, the only proper and relevant test is one of practicability. At one extreme intimation may be given in form F9, but at the other a less formal method may be appropriate.
Practicability of seeking views
 When may it be impracticable to seek the views of the child? Some children are too young to have a view. One cannot ask a baby or a toddler whether she wishes the opportunity to express a view. Such a child is clearly not of an age and maturity where this would be practicable. If being asked for a view would be damaging for the child, because it might make the child think he was having to make a choice between parents, then that could make it impracticable to ask (see sheriff’s decision in G v G (Note) 2003 FamLR 118), but some care would be required. There is no authoritative decision supporting lack of practicability in these circumstances. It may be dangerous to go back to the decision of Sheriff Gow in C Petitioners 1993 SLT (Sh Ct) 8, where the local authority could not complete a report in respect of a step-parent adoption because the child did not know that the mother’s husband was not her father. The sheriff there held that it was not practicable to ascertain the wishes and feelings of the child. Lack of practicability is a question of fact, and in marginal cases it would be wise to seek expert assistance from a child psychologist.
 The Extra Division in S v S indicated that practicability was more a question of how to seek a child’s views than whether to seek the views. The sheriff court rules require intimation of a crave relating to parental responsibilities or parental rights in form F9 (OCR 33.7(1)(h)). The form may have been a radical advance when first drafted, but is now looking decidedly dated. In supposedly ‘large and friendly letters’ it states:
“QUESTION (1): DO YOU WISH THE SHERIFF TO KNOW WHAT YOUR VIEWS ARE ABOUT YOUR FUTURE?
QUESTION (2): WOULD YOU LIKE A FRIEND, RELATIVE OR OTHER PERSON TO TELL THE SHERIFF YOUR VIEWS ABOUT YOUR FUTURE?
QUESTION (3): WOULD YOU LIKE TO WRITE TO THE SHERIFF AND TELL HIM WHAT YOUR VIEWS ARE ABOUT YOUR FUTURE?”
Children are not taught to read in capital letters, and all children now know that capitals in “txt” indicate shouting. There are too many ideas in one sentence. The form is printed only in English, albeit it could be translated for children in any particular case. It does need to be revisited, but in the meantime it is what we are supposed to present to children.
 A more sensitive approach would be to send someone to see the child. It would be possible for the court to appoint a reporter to see whether the child wished to express a view, and if so what that view might be. The power to appoint a reporter is lost in the mists of time, save for local authority appointments which are covered by the Matrimonial Proceedings (Children) Act 1958, section 11. Appointments are however covered in the ordinary causes rules at 33.21. The sheriff is required to direct the person who sought the appointment, or where a report is ordered ex proprio motu the pursuer/minuter to instruct the report and to be responsible in the first instance for the expense, subject to any order in relation to liability for expenses (1958 Act, section 11(5)). Reports can be expensive (see O’Neill v Gilhooley 2007 FamLR 15).
(Continued...To read the full paper please click on the link at the top of the page)