The 2021 appeal is actually the second time that this case had been appealed to the Sheriff Appeal Court. The circumstances, in brief, were that a father sought contact to his daughter who he had not seen for a number of years. A proof took place in spring 2019 and the sheriff, at the conclusion of the proof, pronounced an interlocutor which adjourned the proof to another date and ordered interim contact in the meantime. That interlocutor was appealed and the Sheriff Appeal Court considered that the course the sheriff had adopted was incompetent on the basis that he should have issued a judgment as a proof had taken place (see that appeal reported at 2020 SCLR 325). The sheriff in question duly issued a judgment and this case concerned the appeal of that judgment.
The first appeal point was that the sheriff failed to take into account the mandatory provisions in sections 11(7A-7E) of the Children (Scotland) Act 1995. In short, these provisions impose a duty upon the court, when considering the welfare of the child as its paramount consideration, to consider the need to protect a child from abuse or risk of abuse. Abuse is defined in the Act, and includes domestic abuse, but also the abuse of a person other than the child or any violent or threatening conduct that gives rise or is likely to give rise to the child suffering physical or mental injury, fear, alarm or distress. In this case, the sheriff made findings in fact that the father had carried out acts of violence against the mother which included putting petrol through the mother's door and threatening to set fire to the house when the child was also in residence. The sheriff came to the conclusion that, as the parties had separated and were no longer living together, the domestic abuse was not an important consideration. He found that the social worker's opinion, who led evidence that the mother was extremely fearful of the respondent, was "rooted in the past". The sheriff placed very little importance on the mother's view on contact. The appellate court found that, in these circumstances, the sheriff failed to take into account the mandatory abuse provisions of the 1995 Act.
The second appeal point was in relation to the child's views. The sheriff decided not to take the views of the child who was six years old at the time of the proof. He did not consider that there would be anything gained from taking her views. As he was not asked to by the parties to take her views, he did not do so. The Sheriff Appeal Court, however, found that the sheriff had misunderstood his duty to the court. The sheriff was bound to ascertain the child's views, unless as a matter of practicability it was impossible to do so (s.11(7)(b)). The fact that neither of the parties raised the matter did not discharge the obligation upon the court to address the test of practicability.
The appeal was allowed on both points and the case remitted to another sheriff. What was interesting was that the Sheriff Appeal Court went further and had a general discussion about the child's views. The Inner House in the case of S v S 2002 SC 246, confirmed that article 12 of the United Nations Convention on the Rights of the Child (UNCRC) is the starting point, but that can jar with the current s. 11(7)(b) test of "practicability". The Sheriff Appeal Court commented that if you take the word "impracticable" in its strict sense, you could run the risk of acting contrary to a child's interests. They considered a hypothetical situation where a child psychologist produces a report opining that taking a child's view would be detrimental to their mental health. In such a case it might not be said to be impossible to take a child's view, but would it be in their best interests to do so? The proposed introduction of the new section 11ZB to the 1995 Act by the Children (Scotland) Act 2020 removes the test of impracticability, with the only qualification on taking a child's views being that the child is capable of forming a view. The Sheriff Appeal Court commented that while the new section is more in line with the wording of the UNCRC, it does not provide an answer to the hypothetical situation they describe, and they do not consider that article 3 of the UNCRC (best interests test) could be used to resolve this either.
The UNCRC (Incorporation) (Scotland) Bill passed its stage 1 debate in the Scottish parliament on 19 January 2021. Soon the UNCRC will be rooted into all aspects of Scottish law. Giving children the right to have their views heard when making child orders is not new, but how to take them (unless a child is incapable of forming a view), especially in the hypothetical situation described above, must be considered with sensitivity in each case.