7 PUTTING CHILDREN AT THE CENTRE
7.1 In the preceding chapters we have followed the path of those taking court action, from the identification of seemingly insurmountable contact problems through to their participation in CWHs, and examined how all those involved work to achieve the consensual and satisfactory outcomes which most pursuers reported. The Scottish legal system is among those jurisdictions that have taken on board the UNCRC's requirement, in respect of the rights of children, that children should have a voice in family law matters:
... the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative. ( UN Convention on the Rights of the Child 1989, Article 12(2))
The Children (Scotland) Act 1995 enshrined in law the rights of children in Scotland to have their views considered in family law proceedings and outlined their right to be consulted about their future and about their wishes and feelings during court cases. Since our account so far has centred on the views of pursuers and legal professionals, we consider in this chapter how pursuers and courts ensure that children's voices are heard in any court action in respect of contact, and how children's general welfare is made the foremost priority in any decisions reached. The following is based on the accounts of court staff and pursuers, since we were unable to speak to children or defenders directly.
7.2 Opinion is still divided among professionals and parents as to whether it is in a child's best interests that they be involved in court proceedings, and what form consultation with children should take (Tisdall et al. 2004). Commentators disagree about whether children are so vulnerable that they need to be protected, and about whether they actively create their own identity and so need to have an active role in events that affect their lives (Brannen 1999; Balen et al. 2006). In addition, even where there is agreement that a child's general welfare is best supported by their having a voice in court proceedings, enabling that involvement to take place can be challenging. The autonomy and flexibility of approach in professional practice mean that there may well be inconsistencies concerning whether children are told about the options available to them and are able to assert their rights (Tisdall et al. 2004). Nevertheless, previous research has found that children in Scotland are generally keen to have their views considered when parents are separating or divorcing (Mayes et al. 2003). Children elsewhere have stated that they want some say in where they are to live and how they are to spend their time, but do not wish to be asked to choose between their parents (Paetsch et al. 2009).
7.3 This chapter examines the evidence collected from parents and professionals about the involvement of children in contact cases, and their perceptions about acting in the child's welfare. We will describe:
- how pursuers inform their children regarding court action
- court mechanisms for involving children
- how legal professionals act in the best interests of the child in contact actions
We draw on evidence from all areas of the study, including our surveys, interviews and observations.
Children's knowledge about the court action
7.4 Half of the pursuers with contact issues who completed a survey stated that their children had been told about the court action. Few in our interview sample said that their children had been told about it, and this is consistent with previous research in England and Wales (Walker et al. 2004). The parents in this study gave a number of reasons for not talking to their children about the court action, including:
- going to court in respect of infants who were too young to be consulted
- perceiving children to be too young to understand, irrespective of their actual age
- not wishing to burden children
- believing that children did not want to know, or were refusing to talk about the action
- being concerned that by talking to children, a pursuer could be accused of pressuring the child, or influencing them in some way
One father told us:
I think her mum's told her about it - what's going to happen and that -but she's like, 'Dad, I don't want to speak about it. I think I don't want to speak about it 'cos it just makes me upset.'
7.5 Only one parent we spoke to was asked by his solicitor what his children wanted. We cannot be sure how routinely solicitors ask clients undertaking court action such questions, but establishing children's wishes did not emerge as central in how parents and grandparents recollected agreeing on a course of action with their solicitor. Whether or not parents are able to gather the views of their children, it is of crucial importance to the courts that they (the courts) do so, and we turn now to explore the means by which children can be given a voice in contact actions.
Mechanisms for involving children
7.6 A variety of mechanisms exist during contact cases for ascertaining children's wishes and feelings and involving them in the decision-making process. These mechanisms include:
- a form (F9) to be completed by children, outlining their views
- court-ordered reports
- representation by a curator ad litem or advocate 11 at a CWH
- representation by a solicitor
- speaking directly and in private to sheriffs
Many of these mechanisms are directed by adults, and it is adults who make decisions about the competency of children to give their views.
The F9 form
7.7 This form can be sent at any time during a case to a child who is the subject of a court action regarding contact. It serves both to inform the child about the action and their options, including their right to communicate their wishes to the sheriff directly, and to provide them with the opportunity to communicate with the sheriff by filling it in and returning it to the court. It is designed for them to complete themselves. When a contact action is raised a crave may be sought for the court's authority to serve the F9 on the children. More commonly, a request is made at a hearing for the form to be sent to the children, or alternatively the sheriff might authorise the notification ex proprio motu by serving the form on the child. There may be a motion to dispense with this intimation if a child is not deemed to be old or mature enough (usually, age 12 and above). Court staff decide whether children are competent and/or old enough to complete a form, on the basis of the limited information they receive at the start of a court case. On the basis of the information that we received from the CMS, it appears that relatively few children are sent the F9 to complete, although we were unable to ascertain an exact proportion. Previous research, however, found that F9s were completed in only 26 per cent of cases (Hardin et al. 2000).
7.8 The non-resident pursuers among our interviewees whose children had completed an F9 were concerned that the form had been filled in with the assistance, or in the presence of, the defender, who was the resident parent. They suggested that this gave the defender an unfair advantage, and the potential to influence what the child wrote. Two pursuers stated that they believed the other parent had written letters to the sheriff purporting to be from the child. Pursuers also complained that such issues were compounded because they were not allowed to see the F9 form, leaving them unable to respond to any issues raised.
7.9 A report may be ordered by the sheriff, sometimes at the request of either the defender or the pursuer or both, and charged to one or other party. If a report is ordered, the case may be sisted until the report is available. The estimates of this interval by different sheriff clerks ranged from five to eight weeks. The report itself may be required in advance of the next hearing to allow time for its reading. The sheriff decides what the report should cover and, where the views of a child are sought, consideration must be given to keeping these confidential. A reporter will be suggested or nominated during the hearing, and the report will be lodged with the sheriff clerk on completion. There may be local variations in how the report is distributed or to whom it is made available.
7.10 Among the subset of 182 CMS contact cases we examined over eighteen months, 39 per cent of case records indicated that a report had been ordered. The discussion of reports during CWHs tended to focus on what was said by, for example, teachers and GPs about the child's interests or wishes, rather than quoting or examining the actual words of children themselves. Some pursuers we interviewed expressed the view that more, or lengthier, visits or observations were needed for a reporter to ascertain the general welfare of the child. One grandmother, for instance, felt that the report that had been produced in court stated the opposite of what the reporter had said to her when he had visited. She felt that it could not possibly represent her grandson's views on the basis of the one hour the reporter had spent at her house and the one hour they had spent at his residence:
… you know, we're talking about kids and their upbringing here. At the end of the day a five-minute welfare hearing and a half hour's - you know - independent solicitor … even as experienced as they are, I think really you need to do it over a few visits. To me, that is the only way honestly that you can assess how a child is genuinely feeling.
Using a curator ad litem
7.11 A curator ad litem can be appointed by the court to assess the views of children and to make recommendations on their behalf. Their role differs from that of solicitors in that they have to decide what is in a child's best interests, rather than acting on instructions. Frequently, a curator ad litem will first have been commissioned to spend time with the child and the parties and to produce a report for consideration by the sheriff. A curator ad litem will also be present in court if needed to talk through their findings. We observed the presence in court of one curator ad litem acting for children whose relocation and attendance at a new school had been an issue in the case. She discussed her report and remained the focus of the sheriff's attention for much of the hearing, answering questions about how the children's teachers viewed their situation and about what the children had said to her. In this way, she was able to inform the sheriff concerning the children's views about their school and the extent to which the move would impact on their welfare.
7.12 Some of the pursuers we spoke to identified the report of a curator or reporter as the primary means by which the court had gained information about their child's circumstances and views. In most cases, pursuers were satisfied that the curator had been able to inform the court as to the child's best interests, but some saw the curator or reporter as having misrepresented the children's needs on the basis of too short a visit.
Representation by a solicitor
7.13 Children aged 12 or over have the right to instruct their own solicitors and thus become parties to the case in their own right (Age of Legal Capacity (Scotland) Act 1991, s.2(4A)). This option does not appear to be taken up very frequently, and indeed in only one case during our study was the child represented by his own solicitor. This child had instructed a solicitor at the insistence of his resident mother, and although his father (the pursuer) had initially been unhappy about this, he subsequently changed his view:
Initially, I thought it was nonsense. Then when [laughs] obviously the [child's] solicitor turned round and said 'Yeah, they want more contact with their dad' I thought 'That's a great idea', because I was - well, somebody else said I was actually getting what I wanted.
Very few solicitors who took part in our study had ever represented children. Previous research, however, has indicated that children are unlikely to know how to instruct a solicitor, and are heavily dependent on their parents or other trusted adults to facilitate their access (Tisdall et al. 2004). This may not be the case in other jurisdictions, however. Legal professionals in Canada, for instance, have identified legal representation of children through the Office of the Children's Lawyer as one of the most commonly used mechanisms for hearing the voice of the child in their system, although they recognised some uncertainty over the nature of the Lawyer's role (Paetsch et al. 2009). As we have already seen, few parents even mention the court action to their children.
Speaking directly to sheriffs
7.14 A sheriff may request to speak with a child individually in camera, which means that the child will discuss their views with the sheriff in Chambers. Sheriffs and sheriff clerks we spoke to suggested that this happens only rarely, and the sheriffs we spoke to were often reluctant to talk to children directly. They gave a number of reasons for this, such as:
- the quality and usefulness of reports usually made it unnecessary
- it is inappropriate to require children to attend a 'building full of criminals'
- there is a risk of raising an expectation that might not be fulfilled if the sheriff does not see what the child wants as being in their best interests
- it is potentially difficult for sheriffs to act on the basis of what the child suggests without giving rise to speculation among parents about what has been said
Judges in other jurisdictions have raised similar concerns (Parkinson and Cashmore 2007; Paetsch et al. 2009). However, sheriffs did not rule out the possibility that they might choose to speak with the child if they perceived a need to do so. Some told us that in certain, albeit rare, cases this was an important measure:
… these views are confidential for the court, but I've seen a situation where the parents have thought that one parent was favoured, and it's how to deal with this despite them agreeing that it's best for the child to be with A. [I need] to introduce subtly that the child ... really wants desperately to be with B. (sheriff)
7.15 Sheriff clerks indicated in our interviews that it was very unusual for a sheriff to speak with a child named in an action, particularly if the child was under 12. One told us that the sheriff may talk to a child in order to check that they are not being pressured or misrepresented by one or other parent. Another indicated that there was a risk that speaking to the child could increase the pressure on children at home to tell a particular story. Only two pursuers in our study indicated that the sheriff had spoken directly to their children, who were aged 11 and 9. Both felt that the child's input had been of benefit both to the child and to the case, but both stressed that they had not asked their children what they had said to the sheriff, since they saw this as potentially pressuring them.
Lack of consultation
7.16 The mechanisms described above are part of the toolkit available to obtain the views of children. However, many pursuers we spoke to said that no further information had been gathered beyond what had been submitted by the parties themselves. These pursuers were concerned that no report or conversation had taken place between sheriff and child since they felt that their child's point of view should have been independently assessed and had not been. One father complained that neither solicitors nor courts would have a clear picture of his child when taking important decisions on her behalf:
I showed my solicitor a picture of my daughter, and that's all they've ever seen of her. If they passed her in the street they wouldn't think 'Oh yeah, I've helped your dad' - you know what I mean? And I think that in itself is wrong. You know, nobody knows what my daughter's about ...
7.17 In our interviews, pursuers often stressed that the children's welfare was being ignored or poorly served since no one had asked the children what they wanted. These views were usually linked to a belief that the defender was using the child as a pawn or prioritising their own interests.
Acting for the welfare of the child
7.18 On the whole, pursuers in our survey tended to think that the sheriff, their solicitor and they themselves had acted in the best interests of their child, but they often thought that the other party and the solicitor of the other party had not done so to the same extent. As Figure 7.1 shows, 94 per cent of pursuers felt that they had acted in their child's best interests to a great extent, confirming the point that although parents may have different views of what is in a child's best interests, they nevertheless identify themselves as acting in those best interests when pursuing a court action.
Figure 7.1 Pursuers' perceptions of whether children's best interests were taken into account during court action (n=65)
7.19 These findings were borne out in our interviews with pursuers. Some told us that sheriffs would seek to hold a CWH in order to ensure that their child's welfare was served. Some pursuers who were unhappy with the measures taken by the sheriff said they still felt the sheriff had acted to promote the general welfare of their child. Two pursuers went so far as to say that the sheriff had focused on the child's interests to the exclusion of other important concerns.
7.20 The sheriff clerks also emphasised that sheriffs always had the welfare of the child to the fore in any decision they took. Sheriffs told us that they frequently had to work hard to maintain this focus with those parents who continued to have problems with each other:
... it's constantly bringing people back to what we should be concerned about, namely the children … I mean, I'll say in terms, 'This is not a parent welfare hearing, this is a child welfare hearing.' (sheriff)
7.21 The three guiding principles of prioritising children's welfare, keeping intervention to a minimum and listening to the voice of the child were evident in the handling of cases at hearings we observed. At the conclusion of many CWHs, another CWH to review the situation was agreed expressly with a view to avoiding proceeding to proof, again minimising the intervention of the court. In all instances, there was a clear objective of identifying the implications of any assertions or proposals for the children in the case. Some motions or suggestions were refused on the grounds that their argument did not promote the general welfare of the child. We observed many examples of sheriffs reminding parents who were arguing to focus on the needs of the child:
Slagging each other off does no good at the end of the day … it's not what suits you, it's what's in [the child's] best interests (sheriff, during CWH)
7.22 At many hearings, we also noted an impetus on the part of court staff towards encouraging parents to resolve matters as far as possible between themselves. Speaking of one case in particular a sheriff told us:
This is a classic example of a case the courts should not be involved in. Both parents have shown they are intelligent people, and I'm sorry, it is up to both of you to sort this … (sheriff)
7.23 Solicitors' input often appeared to be oriented towards this shrieval focus on children's interests. In another hearing, we observed the sheriff framing an argument over the continued use of a contact centre in terms of what was best for the child. The father, who was the pursuer in the case, proposed moving on from contact within the centre to taking his child for walks outside. His agent opened his initial statement by recalling the sheriff's eloquence on the previous occasion with regard to parents having the right to fulfil their responsibilities to their children. He then stressed that the contact centre was 'stifling', and 'a very artificial environment for the child to get to know their father in', and therefore that the child was being denied 'the chance to develop a proper relationship'. The defender's solicitor, for her part, stressed that it was 'clear' that the child worried about what her father said to her during contact visits and that this was a basis for not extending current contact arrangements. The hearings we observed centred, then, on children's general welfare, but differing interpretations emerged of what might constitute that welfare.
Maintaining the centrality of the child
7.24 In this chapter we have described how children can have their views heard and considered during the court process and how their interests are taken into account. The key findings from this chapter can be summarised as follows:
1. Few pursuers had told the children about the court action or believed that the child had been told by someone else.
2. Most parents did not consult their children, as they felt they were too young, or did not want to burden them.
3. Some parents were worried that they could be accused of pressuring the children if they discussed the court action with them.
4. Court staff have a variety of mechanisms available to them for ascertaining children's views. The most commonly used methods are court-ordered reports and the F9 (even though it is not used in the majority of cases).
5. Few children in contact actions are represented by a solicitor, or talk to a sheriff in person.
6. Some pursuers were concerned that the time reporters allowed for visits to observe children's home environments was too short to enable them to establish their best interests fully.
7. Almost all pursuers surveyed believed that they were acting in the best interests of the child, and most believed that the sheriff also acts in this way.
8. In court, sheriffs intervene to maintain a focus on children's general welfare. However, solicitors base opposing arguments on divergent accounts of what will support that welfare.
These findings are consistent with those of other research, which has highlighted similar issues when involving, informing or consulting children in contact actions (Tisdall et al. 2004; Hardin et al. 2000). Although judges in many other jurisdictions have the option speaking directly to children in contact actions, divergent judicial opinions on this have been observed among them. It may, for instance, be seen as an important means of involving the child respectfully, gaining first hand opinions and exploring options (Krinsky & Rodriguez 2006). Alternatively, it can be seen as a practice inappropriate to the skills, knowledge and training of judges that may result in stress for children for little benefit (Parkinson and Cashmore 2007; Paetsch et al 2006). Paetsch et al. (2009) suggest that jurisdictions where judicial interviewing of children is rare could usefully learn from those where it is common such as Quebec, where it is a judicial duty. Children often find that their views on family breakdown are not sought or listened to by their parents, and parents for their part offer a variety of justifications for not consulting or informing their children about separation (Smith et al. 2003; Walker et al. 2004; McCarthy et al. 2007).