Taking Account Of The Views Of Children and M v C

In court actions relating to children the practice of seeking the child’s views before a decision is made is well established. The decision could be about where the child lives, the contact they have with a parent or what school they attend, for example. Any person making a decision in respect of a child which involves fulfilling a parental responsibility or exercising a parental right, must have regard so far as practicable to the views of the child concerned (if he or she wishes to express them), taking account of the child’s age and maturity.

The way in which those views are taken by a court can vary. The child may be asked to complete a form which is submitted to the sheriff for consideration.  Alternatively, a child welfare reporter, social worker or child psychologist can be appointed to speak with them.  Finally, but fairly rarely, the child can meet directly with the sheriff. Once the child’s views have been taken it is for the sheriff to decide the weight that should be attached to them, and the extent to which the views will be factored into their decision.

The new Children (Scotland) Act 2020 removes the presumption that a child aged twelve or over is considered old enough to express a view and thereby an inference that children younger than twelve might not be capable of forming such a view. The intention is to ensure that children, whatever their age, who are capable of forming a view and who may wish to give their views are given an opportunity to do so. This change applies to both courts and children’s hearings when making a decision in respect of a child.

The Act sets out two limited situations in which a court or children’s hearing does not need to ascertain a child’s views; where the court or children’s hearing decide that the child is not capable of forming a view or where the location of the child is unknown.

The reality is that most sheriffs will expect to be addressed on whether it is appropriate for the child’s views to be taken, unless the child is so young that it would not be possible.

The recent decision of the Inner House in M v C  reaffirms the duty on the court to take a child’s views and goes further to say that

“It will rarely be correct to conclude that seeking the views of a child will cause unavoidable and material harm to the child. Vague concerns that inappropriate information might be communicated are not a good reason for not seeking a child’s views. Such matters can be guarded against. If children are of sufficient age and maturity to form and express a view, their voices must be heard unless there are weighty adverse welfare considerations of sufficient gravity to supersede the default position.”

This case is timely given the Scottish Government's focus now on implementation of the Children (Scotland) Act 2020 and the parts of the Act that deal with the role of Child Welfare Reporters- you can give the Government your views by responding to the Consultation that my colleague, Caroline Millar wrote about recently, which you can find here.