Voice of the child
Following the consultation on the regulation of disputes concerning a child, the author describes her research into the effectiveness of different methods of hearing children’s views in court
As previously featured in this magazine (Journal, June 2018, 22), on 15 May the Scottish Government launched a wide-ranging consultation on part 1 of the Children (Scotland) Act 1995. The second question of the consultation asks respondents to state which methods can best ensure children’s views are heard in court cases.
The choices given include the form F9, child welfare reporters, and speaking directly to the sheriff. Respondents are also asked to comment on a proposed “child support worker”, who would not act as a representative of the child (or take the child’s views for the court), but who would “advise the child about the court process and help the child to express their views”, such as “by sitting in on any interviews with a child welfare reporter” (consultation, para 2.36), as well as possibly explaining the court’s decision to the child. There is also an option for respondents to suggest and specify “another way” in which children’s views may be heard in court.
The consultation does not, however, garner views in respect of the direct representation of children’s views via their own legal representative.
As it is likely to be helpful to have sight of findings on the extent to which children are currently heard and how, this short analysis, drawn from the author’s doctoral research, provides data in respect of this. The research comprised a review of all child contact disputes between parents that were raised in two sheriff courts over the one calendar year (2007); it remains the most recent to be based on court processes lodged. The resultant dataset comprises 208 cases affecting 299 children. A survey was also sent to all members of the Family Law Association Scotland, with 96 solicitors responding. Interviews were subsequently undertaken with sheriffs, solicitors, parents, children, and family support services.
The discussion offered here is limited to methods already in use that are included in the Scottish Government consultation. It is also important to note that, as observed in the consultation (para 2.63), practice across Scotland may vary.
Findings: prevalence and means of hearing children
Across the court dataset, 42% of the children had their views taken by at least one means. Children were more likely to be heard the older they were; however from the age of just seven years children were more likely to have their views taken than not. Overall, 56% of children falling into the age brackets 7-8 years and 9-10 years had their views taken. This rose to 77% for children aged 11-12 years, while 100% of children aged 14 years and over either had their views taken or had the opportunity of expressing their views at some point during proceedings.
Intimation via form F9
In the context that over half the children in the dataset were under six years of age, 17% of the children were informed of the court action and advised of their right to express a view via a form F9. Intimation via form F9 was granted by the court in respect of 9% of children aged 7-8 years, rising to 14% of children aged 9-10 years, 38% of 11-year-olds and 84% of 12-year-olds. By the age of 15 years, intimation was granted in respect of 100% of children. It is not known whether all children in respect of whom intimation was granted, were actually sent form F9.
Just under half of children who were sent the form returned it. However being sent a form F9, or having an older sibling who was, significantly increased the likelihood of a child expressing their views to the court. For example, nine such children wrote letters directly to the court and five instructed a solicitor (being the only children in the dataset who did).
Child welfare report
The research being discussed here was undertaken prior to the October 2015 amendments to the Ordinary Cause Rules, rule 33.21, which introduced the requirement that reports be ordered only where this will “promote the effective and expeditious determination of an issue in relation to the child”, as well as being “in the best interests of the child”. In this context reports for the court were ordered in respect of 47% of children.
Notably, reports were more likely to be ordered when there was no subsisting contact between the child and the non-resident parent, as well as in cases in which there was reference to domestic abuse (although this latter finding may reflect the fact that thorough enquiries made by reporters might unearth evidence of domestic abuse).
The appointment of a child welfare reporter need not equate with “taking the child’s views”, as not all children who are the subject of a report have their views taken by the reporter (due either to their tender years or to the reporter’s own reluctance to ask children questions specific to contact). Therefore, while reports were ordered in respect of just under half the children, a total of 27% of dataset children had their views recorded as part of a report for the court.
Notably also, 13% of the reports undertaken for the court were actually compiled by local authority social workers, rather than a solicitor: at least one quarter of the families comprising the court dataset had previous or current experience of social work involvement. It was found that, when appointed by the court, social workers were 1.6 times more likely to speak to children than solicitors. They were also more likely to speak to very young children, and they included the views of all children aged from four years and over in their reports (compared to 28% of children aged from four years and over not being spoken with by child welfare reporters who were not social workers).
Speaking to a sheriff
Only three of the children in the court dataset gave their views in this way. They were aged 10, 11 and 12 years. All had been exercising contact with their non-resident parent but this had broken down.
Findings: pros and cons of existing methods
Intimation via form F9
This is the only method by which children are directly informed of the action between their parents and that they have a right to express their views, as well as giving them an opportunity to do so. Receipt into the household of a form F9 increased the likelihood of a child expressing their views (however, this may to some extent be due to the fact that solicitors said they are more likely to crave intimation of the child when a parent informs them that their child wishes to be heard).
It was found that the practice of sending the initial writ to the child along with the form F9 dissuaded practitioners from craving intimation, as well as dissuading the court from granting it. However recent changes to OCR, rule 33.7 now clarify that “a copy of the initial writ must not be sent to the child”.
A further barrier to the effective use of form F9 can be the manner in which it is completed. Copy forms F9 as sent to the child (attached to court processes) were found still to contain the “Notes for Completion” for solicitors, while the meaning of inserted text was sometimes ambiguous and not always in language likely to be understood by a child.
The absence of acknowledgment of a child’s views when sent to the court was also raised as an issue in interviews with parents, children, and third sector family support workers. One support worker observed: “You know the form the children have to fill in for the court, [they need] to make sure they are read and listened to cos the young person I am thinking of, there was no mention of it, she was so frustrated that everything she had taken the time out and built up the courage to think about and to write down was not heard. All her views and all her thoughts, no one heard them.”
While the court is very likely to have taken the child’s views into account, a lack of feedback meant the child was unaware of this.
Child welfare reports
Sheriffs, in interview, were clear that court reports enabled them to obtain factual clarity and might avert the need for an expensive proof hearing. While proof hearings were set in 14% of dataset cases, these were only held in 1% of cases (three cases). Notably, the dataset was compiled prior to the introduction in June 2013 of OCR, rule 33AA case management rules for the expeditious resolution of actions raised under s 11 of the Children (Scotland) Act 1995 (promoting movement towards a case management hearing in advance of proof). It was also prior to the introduction of the requirement that sheriffs specify exactly what the child welfare reporter may do and what their report should contain, under OCR, rule 33.21.
In this context, at the time the data were collected many court reports included descriptions of thorough investigations in which solicitors had followed up leads and spoken with a wide range of individuals. This meant children’s views were not standing up on their own as a single piece of information but could be viewed within the wider context of “the circumstances of a child and [the] proposed arrangements for the care and upbringing of the child” (as per the wording of OCR, rule 33.21 at the time the research was undertaken).
In particular, in those cases where domestic abuse was alleged (49% of cases in the dataset), children’s descriptions of the abusive parent “shouting” or “hitting” could be viewed alongside records of police callouts to the family home and sometimes of injuries to the mother (and /or child), as well as information on previous convictions. While the number of cases in which domestic abuse is alleged in the dataset is strikingly high, it is important to remember that only a tiny subset of separated couples bring a child contact case to court, with the Scottish Government 2007 Child Contact Survey (2008) and Growing Up in Scotland Non-Resident Parent report (2009) estimating this as 5% of couples. Such cases may be expected to be among the most conflicted and to include circumstances where concerns over a child’s welfare are high. Interviews with family law practitioners revealed variance in the significance they believed it appropriate to attach to prior abusive behaviour, as well as to a child’s express wish not to be made to have contact, when they undertook reports for the court.
It was also evident from interviews that solicitors’ confidence in speaking with children varied between practitioners. Some solicitors spoke of observing the children and having a general chat with them (about hobbies and interests), but not actually asking them about the contact they were having or their views on it resuming. Some expressed a reluctance to “ask them anything direct” in case this should “lead” them into a response.
Some parents who took part in the research expressed disappointment at the extent to which they felt their child had been engaged with – such as when an older child was not probed for additional information when he or she observed what would be “fair” (for the parents) in respect of contact. Given that this might not necessarily equate with what the child himself or herself was actually comfortable with, this was arguably a missed opportunity. The extent to which a child would necessarily trust an adult they had only just met with such potentially emotive information was also questioned by some parents.
In interview, some sheriffs suggested that the need for a shrieval interview has been largely supplanted by the introduction of the form F9. However, some also expressed the view that speaking directly with a child can enable them to determine for themselves the veracity of the child’s view. A child interviewee (aged 12) also expressed the view that this option should be available for children when their views, as expressed by a parent, are not believed to be their own. Parents who had a child who had spoken to a sheriff, stressed the need for there to be a support person accompanying the child and that the child should not come into contact with a parent they have not seen for some time in the court building (as this could obviously be upsetting).
Some implications of the findings
These findings suggest that a means of informing children of the action between their parents, as well as their right to express a view if they so wish, should be retained. Currently this is the role the form F9 serves. Clarifying the legislation to remove any ambiguity around the fact that children below the age of 12 years may have sufficient maturity to form a view would also be helpful – to avoid any tendency to view this as a minimum age at which children may be competent to formulate a view.
The findings are also supportive of a means of ensuring that children’s views are acknowledged and the outcome of hearings is fed back to them.
Although shrieval interviews were a relatively rare occurrence, the findings suggest these may serve a useful function when there is uncertainty around the extent to which the views put to the court are those of the child.
In respect of child welfare reports, these may provide the court with vital background information to inform the resolution of a case and may also prevent the need for a costly (and stressful) proof hearing. However, as the difference in approach between social workers and solicitors undertaking reports illustrates, those exercising this role would benefit from training in speaking with children on sensitive issues – including with young children and children who have been exposed to violence. This is because these groups in particular may struggle to name feelings, and may be highly conflicted (such as not wanting to hurt or anger a parent while also being fearful of them).
Finally, it appears beneficial to determining the welfare of children that social workers (who are trained and regulated in accordance with the rules of the Scottish Social Services Council) continue to be utilised by courts to provide reports for children known to them, under s 11 of the Matrimonial Proceedings (Children) Act 1958. This may prevent unnecessary duplication of effort and may draw on their expertise in speaking with, and supporting, the welfare of children and their families.
Dr Kirsteen Mackay is an independent socio-legal research consultant (www.kirsteenmackayconsulting.com) and associate lecturer in the School of Business & Law, Open University. She also tutors in the School of Law, University of Edinburgh.
The research on which this paper is based was funded by the Economic & Social Research Council (ESRC, PTA-031-2006-00040).