From June 24th, the tools and procedures used to do this, in both the Court of Session and Sheriff Courts, will change.
Following a reform project led by the Family Law Committee of the Scottish Civil Justice Council (SCJC), the Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 have been placed before the Scottish Parliament. These set out new procedures and forms for obtaining the views of children in actions seeking orders under section 11 of the Children (Scotland) Act 1995 ("the 1995 Act") or the Child Abduction and Custody Act 1985.
The headline news is that this includes the long-awaited revamp of the views form served on a child (Form F9/49.8A). The new forms are shorter, clearer and use simple, child-friendly language and graphics. The Act of Sederunt also modifies the relevant chapters of the Ordinary Cause Rules and Rules of the Court of Session (to identical effect). There isn't room to cover everything in detail here, but there are a few points to highlight.
Firstly, a party seeking a section 11 order in the Court of Session must aver why it is appropriate to intimate a Form 49.8A on the child; apply by motion for warrant for intimation; and submit the draft Form 49.8A to the court at the signetting stage for the court's approval. Conversely, if the party does not think views should be sought, they must apply to dispense with intimation and aver why they think it is not appropriate. In the Sheriff Court, a warrant for intimation/dispensation must be craved and a draft Form F9 submitted for approval.
Secondly, the rules specify timescales within which the form must be intimated, which depend on whether the pursuer and/or defender are seeking section 11 orders. A certificate of intimation will also now be required, which is a helpful step in cases where one may be unsure whether or not the Form F9/49.8A has been sent out (e.g. if a party litigant is responsible).
Thirdly, if a child welfare report is ordered, the court must make a direction as to whether or not any views aspect ought to be recorded in a separate report and if so, whether or not the parties should be able to see that report. The possibility of parties not being able to see a views report highlights the perennial tension between the right of children to express a view confidentially, and the right of parties to see information which will be taken into account by the court.
Fourthly, if an interim section 11 order is contemplated before the views of the child have been obtained or considered, the Sheriff must specifically consider whether to obtain such a view in advance of making such an order. This will therefore require to be addressed at interim orders hearings.
While these changes represent a welcome update to forms and procedures in this important area, there are some points which may give rise to queries for family practitioners. For example, the requirement for the court to approve the draft views form is intended to ensure judicial oversight of the content following concerns raised during the consultation about wording seeking to influence the child, or using legalese. However, it appears possible that if the draft form is unacceptable, the court could decline to signet/warrant the action until it is revised. This may be of concern in cases where urgent interim interdict/delivery orders are sought as well as section 11 orders.
It is worth noting that the new rules permit the judge/Sheriff to "at any time, order either party" to serve or re-serve the Form 9/49.8A. If urgent interdicts are needed and there is a particular concern about the Form 9/49.8A, it may be possible (if not necessarily within the spirit of the rules) to apply for dispensation in order to get the interdict etc. granted and then seek warrant for intimation on the child to seek views on the substance of the action.
It is also noteworthy that if both the pursuer and defender seek section 11 orders, the pursuer's agent will require to revise their Form 9/49.8A to incorporate information about both parties' orders. It does not appear that this requires to be adjusted with the defender's agent although many practitioners will do so. Such an approach may cause concern to defenders given the nuances of language and the strong feelings in many such cases. The intention, however, is to avoid the child being served with two separate forms.
Any measures which make it easier for children of all ages to express a view about decisions which affect their lives, and afford clarity in how to go about this, will be welcomed by family practitioners. A further Family Law Bill is to be put before the Scottish Parliament later this year (presumably following on from the recent consultation on the 1995 Act) and it may be that further reform of these processes will be considered in that context.