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Court to child: a different approach

18 September 17

Despite efforts to hear the views of children in court decisions affecting them, there is no special method for communicating the ultimate decision. Could one sheriff's initiative provide a benchmark?

by Amanda Masson, Grant Hassan

In actions involving children, there is no mechanism by which the court as decision maker can communicate its decisions to the children whose lives are affected by the decisions made.

In considering whether or not to make an order in relation to a child under s 11 of the Children (Scotland) Act 1995, the court shall ascertain whether a child wishes to express a view, give a child an opportunity to express their view, and have regard to the child’s view taking into account the child’s age and maturity. A view given by a child can be one factor which the sheriff weighs in the balance when making a decision, but is not necessarily determinative of an issue. Giving a view can be an anxious process for a child, particularly where there is an awareness of conflict between parents and a child may have conflicting loyalties.

In Scotland we have different mechanisms by which a child’s view can be taken. A form 9 can be sent to a child, explaining which parent wants what and inviting the child to answer questions and return the form to the court. A child welfare reporter may be appointed to take a child’s view. Sheriffs may decide to speak to children in chambers. However, what appears to have been missing to date is an opportunity to allow a child to engage in a “debrief” to allow them to receive an unbiased neutral explanation of why a specific decision has been made. Court decisions often have far reaching implications for a child, and indeed their parents, with the child feeling anxious about the outcome.

In the vast majority of cases, when an order is issued on an interim basis or by extract decree, a child may or may not have an understanding about the judge or sheriff who made the decision about them or their reason for doing so. In some cases children may receive direct involvement and assistance from child welfare reporters, a curator ad litem, social workers, contact centre workers or psychologists, although these are not the individuals making the decisions. Legal professionals in a case may never know what has been communicated to a child about why a decision was made, arguably leaving a child in limbo, possibly wondering whether or not they have said “the right thing”.

Patrick v Patrick

Sheriff Aisha Y Anwar demonstrated a willingness to take a step further than the norm in the recent case of Patrick v Patrick [2017] SC GLA 46, a contentious contact action heard at Glasgow Sheriff Court.

By way of background, the parties were parents to three children aged between 12 and six years. The parties had an acrimonious relationship. The pursuer sought a contact order in respect of the children. He had enjoyed extensive residential and holiday contact with the children until November 2015. There were allegations of sexual abuse. The sheriff heard evidence over 11 days, including from a detective constable who had conducted a joint investigation following the allegations of abuse, and also from a clinical psychologist, Dr Khan. The decision was issued shortly after the conclusion of the proof. 

Decision by letter

Sheriff Anwar found chapters of the evidence of both parties self-serving and had concerns regarding their reliability and credibility. The allegations of sexual abuse were not found to be established.

It was determined to be in the best interests of the children that they had a relationship with the pursuer, and an award of indirect contact was made. In her decision, the sheriff explained that she regarded it important that the pursuer engage with professionals to address his poor parenting decisions and that the parties give consideration to counselling and mediation. She did not issue a detailed judgment, in light of concerns that selected content might be released in future by either party to the children, which would be contrary to their shorter and longer term best interests. The parties had agreed that the pursuer would undertake the Triple P parenting course, that a psychologist would be instructed by both parties to work with the children to assist them develop a relationship with the pursuer, and that the parties would work with family therapists in advance of mediation and thereafter attend mediation. A detailed and comprehensive plan was in place.

Dr Khan offered the opinion that the court’s decision would best be communicated to the children by the court, as opposed to either of the parents. She explained that it was important for the children, who had expressed deeply held views, to understand that the court had considered all the information and had decided what was best for them and why. In light of the recommendation, Sheriff Anwar decided to write to the children, after review (without amendments) by Dr Khan to ensure that no further distress would be caused. As Dr Khan had been working with the children, it was agreed that she would read the content of the letter to the children. The letter was addressed to the two eldest children, discretion being left to Dr Khan on whether it should also be read to the youngest.

Explaining to the children

The full decision together with the appended letter can be found on the Scottish Courts website. The letter itself extends to two pages. At the outset, it provides an introduction of who Sheriff Anwar is and explains that their parents have asked her to make a decision whether the children should see their dad. Sheriff Anwar acknowledges that she has heard a lot about the children but has never met them. She explains that sometimes when parents split up it is hard for them to stay friends, and their parents have experienced this. She advises that parents can say nasty things and that this is not right, it shouldn’t happen and they should not have to hear it.

The letter states that it is the children’s father’s job to care for, protect, love, help and make plans for them, but their father has sometimes not been very good at that. It acknowledges that he locked the children in their rooms when they had been naughty, swore at them, was a bit rough when washing them when they were younger, moved his new partner into his home and also took his new partner on holiday with them, all of which they didn’t like. It narrates that he should have talked to them so they knew what was happening and why.

Sheriff Anwar expresses the view that she doesn’t believe the pursuer intended to hurt them or to be mean, but he didn’t really think about how the children would feel. She goes on to state that this does not make him a bad dad. She reminds the children of the good times she has heard of the children having with their father, including skiing, holidays, helping with homework and taking them to school. Her letter explains that their dad wants to make things better, that both parents need help and have agreed to get help. She concludes that she feels it is better for the children to get to know their dad again and give him a chance to make things better. She explains that she has asked Dr Khan to meet them to help them understand her decision, and that their father will write to them once a month.

A basis for moving forward?

Such an approach may offer a child a ray of light in what is likely to be a confusing situation, particularly where acrimony is high. At the very least, the children will be better able to put things in context in a way they can understand. The letter makes it clear that the decision was taken despite their view, but that their view was heard, respected and understood. The burden of decision making rests firmly on the sheriff’s shoulders. Arguably the letter to the children may have shifted any perceived burden felt by the children.

It is not known how the children in this case may have reacted to receiving the sheriff’s letter. If it were possible to measure the success in such situations, it might offer additional confidence and tools to the bench in communicating their decisions to children.

This decision shows a proactive move from the bench in conveying its decisions to the children. The decision does, however, also highlight the differing approaches taken in such actions. Some sheriffs may be keen to meet with children directly during the course of ongoing proceedings, while others may be reluctant to do so. This may be due to differing levels of expertise in the family law forum, and levels of experience interviewing children and ascertaining their views. There is also the cautionary reality that interviewing children is an expertise in itself, to avoid influencing a child’s decisions or answers. This raises the question whether further investment should be given to specialist family sheriffs across Scotland and training for interviewing children.

In the present case, Sheriff Anwar had the benefit of effectively working alongside a clinical psychologist who specialised in working with children to try and achieve an outcome re-establishing contact. The benefit of a clinical psychologist sadly is not available to all families.

In early 2018, the Scottish Government intends to review the Children (Scotland) Act 1995, which is now over 20 years old. The goal is to ensure that the interests of children and their need to form and maintain relationships with key adults in their lives are at the heart of any new statutory measures. As part of a letter and questions issued to stakeholders on 17 June 2017, the Government is seeking views on whether further steps should be taken to ensure the voice of the child is heard in cases under part 1 of the 1995 Act, and whether there should be greater emphasis on a child being heard directly by the judge or sheriff. For those practising in the family law sphere, it will be fascinating to see whether more proactive, bold movements will be taken in cases involving a child’s welfare.

Amanda Masson is a partner and Grant Hassan an associate in Harper Macleod’s Family team 

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