How does my child tell the court their views in Scotland?
5th April 2019
New court rules will come into force on 24 June 2019 to change the way in which children let the court know their views in family actions and the existing court forms (i.e. Forms F9, CP7 and 49.8-N) have been updated.
The new rules make it clear that the form 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, but usually it will be for the pursuer to send the form (unless the party defending the action is the only one who seeks a section 11 order).
The new rules will apply to all court actions where a section 11 order is sought, including those where decree has been made previously. Further, the court will be empowered to order that a form can be sent to a child at any time. This might arise in a case where a child had not been sent a form at the outset because they were considered too young, however, given the passage of time, the child is now old and mature enough to express a view. This may also arise where a child’s views have changed.
A form may only be sent to a child where it has been approved by the court and so the draft form must be submitted along with the Initial Writ, Summons, Notice of Intention to Defend or Defences for the court’s approval.
There is recognition that forms may be sent to younger children than previously. Whereas the 1995 Act made reference to 12 years of age or more being the age at which a child be presumed to be of sufficient age and maturity to form a view, the new rules provide for much younger children being able to express their views.
The SCJC has published guidance to assist with preparing and sending the new forms, which can be found here. There are sample texts appended to the guidance which are very helpful in illustrating the sort of language and level of detail expected.
For more information, please contact Susan Oswald.
