New form F9: worth the wait?

Following many years of work by the Family Law Committee (“FLC”) of the Scottish Civil Justice Council (“SCJC”), the heavily criticised child court intimation form (F9) will finally be replaced on 24 June 2019. The SCJC consulted children and young people, as well as children’s organisations on the redrafted forms and has taken on board many of the suggestions provided. With the help of a graphic designer, the new and improved form is colourful and much more engaging. An accompanying letter has also been introduced which advises the child of their right to give a view. The language used in the letter is child-friendly, and difficult terms such as “sheriff” are clearly defined.

The SCJC hasn’t stopped at replacing the form F9; it has gone a step further and amended the court rules too. The new rules make important provisions about the point at which the form F9 should be sent to the child. The form will only be sent once it is known whether the action will be defended. This will prevent the child being sent two forms seeking their views, which can be disheartening for some children. The new rules also seek to encourage greater use of the form F9. While the current rules do not preclude children under a certain age being sent the form F9, research shows that in many cases parties ask the court to dispense with intimation on the child simply because the child is under 12 years of age. The FLC has acknowledged that many children younger than 12 are capable of expressing a view, and has therefore introduced a new rule which provides that a party may seek to dispense with intimation where that party “considers that it would be inappropriate to send Form F9 to the child (for example, where the child is under 5 years of age)”.

Not the last word on reform

This long-awaited overhaul of the form F9 is certainly indicative of positive progress towards ensuring the voice of the child is heard. However, further law reform is required to ensure a child’s participation in the family court process is effective and meaningful. There is a need for a mechanism in which the child can learn of any decision that has been made about them, or at the very least have their views acknowledged by the court. Without such a mechanism, a child can be forgiven for questioning whether their views have in fact been listened to and taken into account. This issue was previously discussed in Amanda Masson and Grant Hassan’s article at Journal, September 2017, 26.

The form F9 is just one way in which a child’s views can be obtained in family actions, and there are many other issues which need addressed. So, while the revamped form F9 and rules improve one mechanism used to seek the views of children in family actions, they do not improve the other methods. Nor do they address the issue of the sometimes-sceptical circumstances in which the form F9 is completed by the child.

Truly the child's view?

How does the court know that the completed form is a true representation of the child’s views? The child may have been influenced by a parent with regard to what to write on the form. The child should be encouraged to fill in the form F9 in the presence of an impartial trusted adult such as a teacher (known as an “adult helper”). While we acknowledge that the form asks the child to note down the name of any helper used, there is no signed declaration as to the child’s independent views.

In our consultation response we suggested that the adult helper should sign a declaration confirming that they do/do not believe that the child’s views are their own. In our experience, when the form is completed in the presence of an impartial adult it gives greater weight to the child’s views and alleviates the problem of influence from any party to the proceedings.

Last year the Scottish Government launched a consultation reviewing part 1 of the Children (Scotland) Act 1995, stating that it intends on publishing a “Family Justice Modernisation Strategy” outlining existing and further planned work to improve how family actions are dealt with. It is understood that the strategy will address issues in relation to the way the voice of the child is heard in family court actions. It is essential that the rights and interests of children are at the heart of any family justice modernisation proposals. It is also crucial that any proposed family law reforms are introduced without delay, as it has already taken a lengthy period of time for the strongly criticised form F9 to be replaced.