From June 24, 2019, new laws took effect which change how children's views are heard within court cases affecting them. This follows the consultation into how court processes could be made more child-friendly, led by the Family Law Committee (FLC) of the Scottish Civil Justice Council.
What changes have come into effect?
Prior to taking part in court proceedings, children are regularly given court forms to inform them of what the proceedings are about and may also be used to enable the child to provide their views ahead of proceedings. Many of these forms have been unchanged for the past two decades, and it was felt that they were in much need of modernising and made more user-friendly for children. Solicitors will also have greater responsibilities when representing children.
Court documents made more child-friendly
The new forms have been made more child-friendly by using simplified language, pictures and even emojis. Children will be encouraged to use the forms to provide their views about any orders sought in court regarding their care - for example, which parent they would wish to live with following a separation.
As part of the consultation, the FLC worked with graphic designers and sought the views of children to gauge how easy the new forms would be to use.
New responsibilities for family lawyers
As well as updated forms which are issued by the courts, there are also further obligations now placed on solicitors to ensure the forms they give to children are equally user-friendly, and suitable for children, taking into account the age of the child.
Forms given to children should not contain technical language which they may not understand and should be simplified in such a way so that they can be as easily understood as possible for the child. Furthermore, solicitors have a responsibility to ensure that forms are neutral and not be used to try and sway a child's opinion – for example, in favour of one parent over another. Guidance on these points has been made available for solicitors.
Does this mean children will have more say in court proceedings?
A child over the age of 12 in Scotland is in law "presumed to be of sufficient age and maturity to form a view". Whether this age is too young, or old, has been long debated. Nevertheless, providing children with the means to more easily offer their opinions in court proceedings and ensure that they have the best possible understanding of the importance of the proceedings is undoubtedly a good thing.
While children must also be allowed to complete the forms true to their own opinions, it is always down to the judge's discretion how reliable this information is, how much weight should be given to the child's view, and how much influence a parent or another person has had on forming that child's opinion. The FLC hopes that these updated procedures will help to ensure that the views of children are sought in the vast majority of cases, even in cases where a child is under the age of 12, unless it would be inappropriate to do so.
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