Child intimation court forms to be replaced

The much criticised court form used to seek the views of children in family and civil partnership actions is to be replaced.

Following work by the Family Law Committee of the Scottish Civil Justice Council, the Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 was laid before the Scottish Parliament on 29 March and comes into force on 24 June 2019. It inserts new forms to replace existing forms F9 and CP7 in chapters 33 and 33A respectively of the Ordinary Cause Rules, and form 49.8-N in chapter 49 of the Rules of the Court of Session.

The SCJC consulted children and young people, as well as a number of organisations that work with and represent them, about how the existing forms could be improved. The Family Law Committee incorporated many of the suggestions and feedback received, and a graphic designer was appointed to give the forms a more colourful and child-friendly look and feel.

Among other things, the new instrument makes provision about the point at which the form should be sent, who should send it, and makes sure the child’s views are sought when a party makes an application after final decree.

The committee acknowledges that a form is not always the most appropriate way to obtain a child’s views. The Scottish Government has indicated that it intends to introduce a Family Law Bill into the Scottish Parliament, which is likely to include provisions on how best to obtain the views of the child. In the meantime, the instrument replaces the existing form and introduces new rules providing clarity about its use. Additionally, the Scottish Courts & Tribunals Service plans to look into the possibility of enabling children to submit their completed forms electronically.

The new rules make it clear that the form F9 should not be sent to the child until it is known whether the action will be defended. They also specify which party should send the form and when, depending on who seeks a s 11 order.

It will normally fall to the pursuer to send the form, even where both parties seek a s 11 order. The defender will only send the form where he/she is the only party seeking a s 11 order. The sheriff is also given a discretion to order a form F9 to be sent to a child at any time. This could be useful in cases where a young child was not initially sent a form, but is now older and mature enough to express a view – or it is thought the child’s views may have changed.

A draft form F9 should also be submitted to the court along with the initial writ/summons (or notice of intention to defend/defences, where applicable), showing the details that the party proposes to include when the form is sent to the child. The court must be satisfied that the draft form has been prepared appropriately.

Committee members were very keen to bring about a culture change over sending forms to younger children. Many children a lot younger than 12 are capable of filling in a form to express their views, even if they require help to do so. It is therefore provided that where the pursuer "considers that it would be inappropriate to send Form F9 to the child (for example, where the child is under 5 years of age)", the initial writ must contain a crave to dispense with intimation and state the reasons why it is inappropriate.

Click here to view the Act of Sederunt, and here for SCJC guidance on preparing and sending the new form.