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New form F9: worth the wait?

20 May 19

Form F9, the much criticised court form for intimation to a child, is finally to be replaced, but the Scottish Child Law Centre supports further reform to ensure meaningful participation by the child

by Kirstin Hudson

Following many years of work by the Family Law Committee (“FLC”) of the Scottish Civil Justice Council (“SCJC”), the heavily criticised child court intimation form (F9) will finally be replaced on 24 June 2019. The SCJC consulted children and young people, as well as children’s organisations on the redrafted forms and has taken on board many of the suggestions provided. With the help of a graphic designer, the new and improved form is colourful and much more engaging. An accompanying letter has also been introduced which advises the child of their right to give a view. The language used in the letter is child-friendly, and difficult terms such as “sheriff” are clearly defined.

The SCJC hasn’t stopped at replacing the form F9; it has gone a step further and amended the court rules too. The new rules make important provisions about the point at which the form F9 should be sent to the child. The form will only be sent once it is known whether the action will be defended. This will prevent the child being sent two forms seeking their views, which can be disheartening for some children. The new rules also seek to encourage greater use of the form F9. While the current rules do not preclude children under a certain age being sent the form F9, research shows that in many cases parties ask the court to dispense with intimation on the child simply because the child is under 12 years of age. The FLC has acknowledged that many children younger than 12 are capable of expressing a view, and has therefore introduced a new rule which provides that a party may seek to dispense with intimation where that party “considers that it would be inappropriate to send Form F9 to the child (for example, where the child is under 5 years of age)”.

Not the last word on reform

This long-awaited overhaul of the form F9 is certainly indicative of positive progress towards ensuring the voice of the child is heard. However, further law reform is required to ensure a child’s participation in the family court process is effective and meaningful. There is a need for a mechanism in which the child can learn of any decision that has been made about them, or at the very least have their views acknowledged by the court. Without such a mechanism, a child can be forgiven for questioning whether their views have in fact been listened to and taken into account. This issue was previously discussed in Amanda Masson and Grant Hassan’s article at Journal, September 2017, 26.

The form F9 is just one way in which a child’s views can be obtained in family actions, and there are many other issues which need addressed. So, while the revamped form F9 and rules improve one mechanism used to seek the views of children in family actions, they do not improve the other methods. Nor do they address the issue of the sometimes-sceptical circumstances in which the form F9 is completed by the child.

Truly the child's view?

How does the court know that the completed form is a true representation of the child’s views? The child may have been influenced by a parent with regard to what to write on the form. The child should be encouraged to fill in the form F9 in the presence of an impartial trusted adult such as a teacher (known as an “adult helper”). While we acknowledge that the form asks the child to note down the name of any helper used, there is no signed declaration as to the child’s independent views.

In our consultation response we suggested that the adult helper should sign a declaration confirming that they do/do not believe that the child’s views are their own. In our experience, when the form is completed in the presence of an impartial adult it gives greater weight to the child’s views and alleviates the problem of influence from any party to the proceedings.

Last year the Scottish Government launched a consultation reviewing part 1 of the Children (Scotland) Act 1995, stating that it intends on publishing a “Family Justice Modernisation Strategy” outlining existing and further planned work to improve how family actions are dealt with. It is understood that the strategy will address issues in relation to the way the voice of the child is heard in family court actions. It is essential that the rights and interests of children are at the heart of any family justice modernisation proposals. It is also crucial that any proposed family law reforms are introduced without delay, as it has already taken a lengthy period of time for the strongly criticised form F9 to be replaced.

Kirstin Hudson is a solicitor with the Scottish Child Law Centre

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Your comment

Andrew McLean

Tuesday July 9, 2019, 22:47

My view is that children’s views should be taken into account. How that information is gathered is crucial. My recent experience of this process has not been good. Letters addressed to my children aged 9, 10 and 11 arrived in the matrimonial home. I only became aware of this at a court appearance. So my soon to be ex-wife and mother of the children supervised the completion of these forms without any input from me. I am certain but cannot prove that children were manipulated to express views which favoured the children living with the mother and my access to the children is every second weekend.

I am now having to decide a year later to have a mock F9 form put in front of the children. The mother and I have to agree who supervises the completion of this form. My fear is that the children will be coached by the mother to express views by which my access will not be increased.

Like the majority modern fathers I was involved in every aspect of parenting from the moment the children were born, changing nappies, bottle feeding, pushing prams, there for the first day of school, attending parents' night at school, taking the kids to extracurricular activities etc. The days where fathers have little to do with children’s wellbeing other than being in many cases the main financial provider are long gone. I was a good dad; I am a good dad. I think to reduce my access so dramatically has not been in the best interests of the children’s wellbeing.

I feel powerless and despair - beaten by a system which favours the wishes of mothers.

I think the views of the children should be collected by a neutral professionally trained person. Perhaps the children could be removed from lessons. I understand this would be a more expensive method of collecting the children’s views compared to a posted questionnaire. As a teacher I am well aware that children's views of learning and teaching in the schools they attend are collected via pupil focus groups by professionally trained HMIE government inspectors. So if it good enough for education it should be good enough for this aspect of family law.