Out of the mouths of babes

The Children (Scotland) Act 2020 received Royal Assent on 1 October 2020. Once in force, it will make comprehensive changes both to the substance of family law and to the ongoing management of court proceedings.

Some of the most significant amendments relate to “family court cases” (including residence and contact disputes) raised by private individuals under part 1 of the Children (Scotland) Act 1995. To date, the provisions relating to the child’s right to be heard in such cases remain as enacted in 1995. They broadly involve the court in acquiring and taking account of children’s views when reaching a decision. However, today, article 12 of the United Nations Convention on the Rights of the Child (“UNCRC”) is understood as entitling children to participate actively in a process that involves greater dialogue between them and the adults making decisions about them.

In amending part 1, the 2020 Act creates a number of new legal duties as respects ensuring children’s participation in family court cases. The three core duties are outlined below. Also provided is the author’s table of the amendments to part 1, for ease of future reference.

1. Enabling children to express views in their preferred manner

Section 11(7)(b)(i)-(iii) of the 1995 Act provides that children must be given an opportunity to indicate if they wish to express a view and, if so, the opportunity to do so. The court should have regard to such views, taking into account the child’s age and maturity. By s 11(10), a child aged 12 years or more is presumed of sufficient age and maturity to express a view.

These provisions are repealed by the 2020 Act. In their place, s 1(4) creates a new s 11ZB, entitled “Regard to be had to the child’s views”. (Sections 2 and 3 respectively make parallel provision in relation to adoption proceedings and children’s hearings.) Importantly, s 11ZB(1)(a) provides that, “In deciding whether or not to make an order… the court must” give the child an opportunity to express a view in: “(i) the manner that the child prefers, or (ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child’s preference”.

Subsection (1)(a)(i) represents a new approach to the expression of views by children. Subject to limited exceptions, where a child intends to express a view, the court must now enable that in the manner the child wishes.

Its purpose is to make the process for children expressing a view more accessible and less intimidating. Once it is in force, the court will require to ascertain, first, whether a child wishes to express any view (the current duty) and, secondly, if so, how the child would like to do that (the new duty). A range of viable options, appropriate to that child’s age and circumstances, will require to be offered in order to facilitate an authentic choice as to how to express their views.

A child may, for example, want to speak to the decision-maker in the court case, or complete an F9 form, or convey a view by email or through a teacher or youth worker. Also, s 21 of the 2020 Act places a new duty on Scottish ministers to ensure availability of child advocacy services for children in family court cases, and this is likely to become a growth area of professional practice. Where a child does not express a preference or asks for something the court cannot reasonably accommodate, s 11ZB(1)(a)(ii) allows the court to select a manner of expressing a view that is “suitable to the child” instead.

Once a view has been obtained, the court’s role remains as in the current law, namely, to “have regard to any views expressed by the child, taking into account the child’s age and maturity” (s 11ZB(1)(b)). The court need not comply with the duty in s 11ZB(1) if satisfied that either “(a) the child is not capable of forming a view, or (b) the location of the child is not known”.

2. Children to be presumed capable of forming a view

The presumption noted above, regarding a child of 12 or more being presumed able to form a view, is replaced with s 11ZB(3): “The child is to be presumed to be capable of forming a view unless the contrary is shown.”

In other words, all children should be presumed to have the ability to form and express a view. This new presumption introduces a radically different approach in family court cases. It is supported by UNCRC article 12, which requires that children “capable of forming [their] own views [are given] the right to express those views freely in all matters affecting” them.

Neither article 12, nor guidance issued by the international watchdog, the UN Committee on the Rights of the Child, specifies a minimum age for the capacity to express a view. The contemporary rationale is that article 12 requires respecting all children as rights-holders from their earliest stages. Research has long indicated that biological age is not the sole determining factor of such capacity. Many factors, including personal experiences, environment, and levels of support provided, have been observed to affect a child’s ability to form or express a view (see, e.g. G Lansdown, The evolving capacities of the child, Innocenti, UNICEF/Save the Children, Florence (2005), section 2).

Research also supports the view that very young children, as well as those with profound and multiple learning difficulties, are often capable of using a range of communication methods to convey “understanding, choices and preferences”: UN Committee on the Rights of the Child, General Comment No 12, The right of the child to be heard, CRC/C/GC/12 (2009), para 21, which also refers to “non-verbal” forms of communication, such as play, body language, facial expressions. It is worth noting that every children’s organisation in Scotland submitting views that informed the passage of the 2020 Act supported the creation of this new pro-capacity presumption.

The Sheriff Appeal Court recently commented on these prospective provisions, making a (perhaps controversial) observation about the ability of younger children to express views by indicating that it “might be that a child under three years would not have formed a view” (LRK v AG [2021] SAC (Civ) 1, at para 12). Once the Act is in force, there is likely to be considerable debate about the new presumption. 

Most importantly, s 11ZB(3) places the onus on any person contending that a child lacks capacity to demonstrate this. The wording (“unless the contrary is shown”) indicates that, in some cases, expert evidence may be required to rebut the presumption. Section 11ZB(1) provides that the child’s “age and maturity” remain factors to which the court must have regard when considering the substance of any view expressed.

The Act does not repeal s 2(4A) of the Age of Legal Capacity (Scotland) Act 1991, which states that “a person twelve years of age or more shall be presumed to be of sufficient age and maturity” to have capacity to instruct a solicitor. In retaining this age presumption, a clearer distinction has now been made in law between the ability that most children will possess to form a view in family proceedings on the one hand and, on the other, the higher capacity benchmark required for instructing a solicitor.

3. Explaining decisions to children

The new s 11F of the 1995 Act, inserted by the 2020 Act, s 20, provides that an explanation “must” be given when “the court decides whether or not to make an order” under s 11(1) (e.g. a residence or contact order). An explanation also needs to be given whenever the court decides to “vary or discharge” (i.e. alter or terminate) a s 11(1) order. Interim orders are explicitly covered. When the court “decides to decline to vary or discharge an order made under section 11(1)”, an explanation need only be given if the court “considers it appropriate to explain that decision to the child concerned” (s 11F(1)(c)).

While this new provision does not require explanations to be given in the manner the child prefers, s 11F(2) does require that they be conveyed “in a way that the child can understand”. By s 11F(3), the court is only excused from the duty to provide an explanation on being “satisfied” that one or more of the following applies: “(a) the child would not be capable of understanding an explanation however given, (b) it is not in the best interests of the child to give an explanation, or (c) the location of the child is not known”.

Section 11F(3) invites two obvious questions. The first concerns exactly how the lack of capacity to understand any explanation is to be assessed. Here the words “however given” in para (a) are helpful, as they suggest that a range of communication methods should be considered before a decision is taken not to explain an outcome to a child. This can be expected to be the case even if a child is very young or has significant learning difficulties.

The second question is when it might not be in the “best interests of the child” to be given an explanation. For example, children may be unwell, or particularly upset by the circumstances surrounding the family breakdown. Or, sensitive details about the adults’ relationship may have influenced the court’s decision and it might be thought better not to disclose those details. However, the occasions on which it would be inappropriate to give any appropriately worded explanation to the child about the decision are, it is suggested, likely to be the exception rather than the rule.

Section 11F(4) enables the court either to (a) “[give] the explanation to the child itself, or (b) [arrange] for it to be given by a child welfare reporter”.

Section 11F gives no detail on the content or length of the explanation required for children, or the timescale for providing this. Secondary legislation may do this in time. However, in the context of the imminent incorporation of the UNCRC into Scottish law, a reasonable interpretation suggests two requirements: first, that any explanation would involve “explaining how [the child’s] views were considered”, and secondly, that it would include reference to the “weight given” by the court to the child’s views (para 48(a) of the UN General Comment referred to above).

Other new duties concerning child participation

In addition to the above core duties, the 2020 Act also creates other, additional requirements in respect of children’s participation in family court cases.

For example, s 18, inserting new s 11E in the 1995 Act, requires the court to consider the child’s best interests (and their views) before allowing any person access to “private information” about the child. Section 11E(6) defines this as “information in which the child could have a reasonable expectation of privacy”. The 2020 Act also places, for the first time, a duty on courts to investigate failure(s) to obey court orders, through s 22, creating new 1995 Act, s 11G. This new duty includes a broad requirement to seek the child’s view about any such failure, with the child’s capacity being presumed.

An important step

Given that the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill is likely to become law in 2021, the changes the 2020 Act makes to the Children (Scotland) Act 1995 are most welcome. They represent an important step in the journey towards ensuring Scots law becomes compliant with the UNCRC, which requires listening to children of all ages in family court cases.

Current law

(i) welfare of the child concerned is paramount consideration (s 11(7)(a))

(ii) no order unless court considers that it would be better for the child that the order be made than that none should be made at all (s 11(7)(a))

(iii) child given opportunity to express a view to which the court shall have regard (s 11(7)(b)):

give child opportunity to indicate if wish to express view if so, give opportunity to express

taking account of age and maturity, to have regard to such views (s 11(7)(b)(i)-(iii)

child aged 12 years or more presumed of sufficient age and maturity to express view (s 11(10))

(iv) protection from abuse provisions (s 11(7A)-(7E))

(v) co-operation in matters affecting the child consideration (s 11(7D))

Law after Children (Scotland) Act 2020 in force

(i) welfare of the child concerned is paramount consideration (s 11ZA(1))

(ii) no order unless court considers that it would be better for the child that the order be made than that none should be made at all (s 11ZA(2))

(iii) have regard to any risk of prejudice to the child’s welfare that delay in proceedings would pose (s 11ZA(2A))

(iv) protection from abuse provisions (s 11ZA(3)(a)-(d))

(v) co-operation in matters affecting the child consideration (s 11ZA(3)(e))

(vi) consider effect of the court order on parents’ involvement in upbringing of child and on the child’s important relationships (s 11ZA(3)(f)(i), (ii))

(vii) regard to be had to the child’s views (s 11ZB):

• give the child concerned opportunity to express view in manner the child prefers (s 11ZB(1)(a), with limited exceptions to this provision)
• have regard to any views expressed by the child, taking into account age and maturity (s 11ZB(1)(b))
• children to be presumed capable of forming a view unless the contrary is shown (s 11ZB(3))

(viii) increased protections (“special measures”) for broader group of persons to be deemed vulnerable witnesses/parties (ss 11B, 11C)

(ix) appointment of curator only where necessary to protect child’s interests – and review appointment every six months (s 11D)

(x) duty to consider child’s best interests and views (child to express view in manner of preference/child presumed competent to express views) when allowing any person access to private information about child (s 11E)

(xi) provision of explanation of decision to child in a way that the child can understand (limited exceptions) (s 11F)

(xii) duty to investigate failure to obey s 11 order – including seeking the child’s perspective in respect of failure (child to express view in manner of preference/child presumed competent to express views) (s 11G)

* considerations are listed in the order in which they appear respectively in the current, and amended, 1995 Act

** the s 11 orders (e.g. residence, contact etc.) remain unchanged

*** text in italics indicates considerations that are unchanged (albeit there are some amendments to expression in the re-enacted provisions). Bold text indicates the three new core duties discussed in this article in respect of children’s participation.