23 July 2021

Parents who have separated can, understandably, often find it very difficult to come to an agreement about the care arrangements for their children. So what happens if they simply cannot agree? Do they have to end up in an acrimonious court battle? In our experience, whilst litigating care arrangements for children remains an option, it should only be considered as a last resort in the event that other forms of dispute resolution such as mediation, Collaborative Practise, Arbitration or traditional solicitor lead negotiation prove unsuccessful. The Sheriff or Judge does not know the parties or the children. The outcome of a litigation will therefore potentially not please either party, will be hugely expensive and will likely completely polarise the parents which will make sharing the care of their children in the years to come even harder. Also parents have to remember that if they do raise court proceedings, their children are very likely to become involved in that process.

The importance of taking the views of children, at the centre of proceedings about their care, has long been an integral part of the Scottish legal system and one which has evolved and strengthened over the years.

Article 12 of the United Nations Convention of the Rights of the Child states that a child who is capable of forming his or her own view has the right to express those views freely in all matters affecting the child and that the views of the child should be given due weight in accordance with the age and maturity of the child. This was reflected in Scots law in section 6 of the Children (Scotland) Act 1995 and it applied to any decisions to be made regarding the child’s care.

The Children (Scotland) Act 2020 then received Royal Assent on 1 October 2020. Sections 1 to 3 of the Act, which are not yet in force, expand and strengthen section 6 of the 1995 Act and ensure that the child gives their views either in the manner the child prefers or in a manner suitable to that particular child. Scots law presumes that a child of twelve years or older is of sufficient age and maturity to form a view. However once Section 1 of the 2020 Act comes into force, this presumption will be repealed. The consequence of this is that even young children will be given the opportunity to express their views. You can read more on this new legislation here (Everything you need to know about the new Children (Scotland) Bill (btofamilylaw.co.uk))

There have also been a number of cases recently which have centred around the matter of the taking of children’s views.

In the recent case of FBI v MH [2021] SAC (Civ) 16, the decision of the Sheriff was overturned on appeal, as the child had not been given an opportunity to express her views. It was noted that the child was eleven years old, and there was nothing to indicate that she was not of sufficient age and maturity to form and express a view in the proceedings.

Similarly, in the case of M v C [2021] CSIH 14, the Sheriff at first instance had decided that it would not be appropriate to take the views of the child, who was just under five years old. The reason being was that there were concerns that inappropriate information might be communicated to the child, and therefore it was not practicable to take their views. There were various matters in dispute, and the second appeal was heard by the Inner House at the Court of Session. The Judges there made particular reference to the fact that whilst a child’s right to be heard is not absolute, if the child is of sufficient age and maturity to form and express a view, they must be given the opportunity to be heard. This is caveated in that this default position can be departed from but only if there are considerable adverse welfare concerns for the child.

Additionally, in the case of LRK v AG 2021 SLT (Sh Ct) 107, the Sheriff at first instance took the view that the six year old child was too young to express a view, that it would be difficult to try and ascertain what her views were and that as neither party had asked him to give the child the opportunity to give her views, it was irrelevant. The Appeal Court disagreed. The Appeal Court found that the Court has a duty to provide children with the opportunity to be heard, irrespective of the parents’ respective positions on the matter. The Appeal Court’s view was that a child of 6 years old could, on the face of it, give a view and that the Sheriff should have given reasons as to why taking her views was impracticable. Given that there are a number of child friendly ways in which a child can give their views it is difficult to see many situations where it could be deemed impracticable to do so and certainly once the 2020 Act comes into force the test of impracticability will really be swept away entirely.

Whilst it is very positive to see the Legislature and the Scottish courts recognising the importance of taking children’s views, these cases serve as a timely reminder to separated parents. If the care arrangements for a child cannot be agreed by their parents, and as a result a court action is raised, their child will likely be given the opportunity to express their views unless they are very young. It is important that parents recognise the impact this may have on their child, particularly given the child may feel like they are being asked to choose between their parents. As we have said above it is therefore advisable to explore other dispute resolution avenues first before embarking on litigation.

If you do find yourself requiring advice on the care arrangements for your children, please do not hesitate to get in touch with the BTO Family Law Team at familylaw@bto.co.uk and we would be happy to assist.

Lesley Gordon, Partner: lxg@bto.co.uk / 0131 222 2939