Hearing Children in the Law

Posted On: 21 June 2011

Author: Janys M Scott QC

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Article 12 of the United Nations Convention on the Rights of the Child has made a significant impact on Scots law. Janys Scott QC examines some of the advances and limitations on implementation of article 12 in this paper presented to a seminar with the Scottish Child Law Centre on 17 June 2011.


Hearing Children in the Law

[1] There has been a significant change in the way the law treats children over the last twenty five years. At one time children were generally seen as the helpless subjects of decisions by adults. What the grown ups said, or decided, was good for them, was what should happen. Increasingly children have been recognised by the law as having an important contribution to decisions. They are no longer inevitably viewed as the subjects of decision-making, but may be participants in the making of decisions.

United Nations Convention on the Rights of the Child, article 12

[2]  The United Nations Convention on the Rights of the Child has been one of the main driving forces for change in the law. On 20 November 1989 the United Nations General Assembly adopted the Convention on the Rights of the Child. It has since been ratified by 194 countries, every member of the United Nations save the United States of America and Somalia. The United Kingdom ratified the Convention on 16 December 1991. Ratification commits a country to bringing its law into conformity with the Convention. The Convention has 54 articles which focus on the rights of children, from a basic right to life, to rights in terms of education and rights under the criminal law. When it comes to legal proceedings concerning children the best interests of the child is to be the primary consideration. The most often quoted article however is probably article 12.  This 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.”

[3]  The Children (Scotland) Act 1995 gives statutory effect to the Convention. There is a theme running through the Act which is based on article 12.  The theme bears first of all on parents. This can be seen in section 7 which states:

“A person shall, in reaching any major decision which involves—

(a) his fulfilling a parental responsibility ...; or

(b) his exercising a parental right...,

have regard so far as practicable to the views (if he wishes to express them) of the child concerned, taking account of the child's age and maturity...”

[4]  It then goes on to apply article 12 to courts making decisions about parental responsibilities and parental rights, including residence and contact.  This is can be seen in section 11(7)(b) which says:

“... 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.”

[5]  The theme continues into the part of the Act relating to children’s hearings and court decisions in the context of hearings, where in section 16(2) there is an identical duty. This duty has been carried forward into the Children’s Hearings (Scotland) Act 2011, where it is found in section 27 and will be applied as and when the new Act comes into force. There are similar provisions in adoption legislation, now found in the Adoption and Children (Scotland) Act 2007, sections 14 and 84. Education authorities providing school education have a duty to consult children’s views in terms of the Standards in Scotland’s Schools etc, Act 2000, section 2(2). This is expressed in general terms in section 2, but given particular effect elsewhere, for example requiring schools to consult pupils in relation to school development plans. More recently the Schools (Consultation) (Scotland) Act 2010 includes pupils as relevant consultees in relation to proposals to close schools or to make other material changes to the provision of education.  Article 12 has had a far-reaching impact on the law relating to children.

[6]  Clearly a baby is not going to express a view. The law takes account of child development by requiring that the child’s age and maturity is taken into consideration.  Views are only to be taken where this is reasonably practicable taking account of the child's age and maturity. In legislation relating to  parental responsibilities and paretal rights a child twelve years of age or more is presumed to be of sufficient age and maturity to form a view. This does not mean that a child under the age of twelve lacks the age and maturity to form a view. Many children under twelve will have the age and maturity to be consulted. Whether or not this is so is a question of fact in each case. The closer the child is to the age of twelve the more likely it is that he or she can form a view and should be given the opportunity to express that view. The Children (Scotland) Act 1995 is careful to avoid an intrusive approach.  Children are not required to express their views. They must be given the opportunity. 

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