OBTAINING THE VIEWS OF A CHILD

The relevant part of the Consultation is here.

At what age can children's views be obtained (Question 1)

The Children (Scotland) Act 1995 refers to a guideline age of 12 for considering child's views, but FNFS considers that meaningful views can be obtained from all school-age children.  Increasing age and maturity may lead to a view being taken more seriously, but whatever his or her age a child is not being asked to decide about important issues such as where they should live and how often they should see each parent. 

Although there may be reasons in certain situations for obtaining views of pre-school children, this should only be done by people who are properly trained (see q3 below). 

The views of children who use "adult" language to express their views or who seem to be rejecting one parent without a proper reason should be considered carefully - see Dr Kirk Weir's research report on "Intractable contact disputes - the  extreme unreliability of children’s ascertainable wishes and feelings" which suggests that the current practice of routinely seeking to establish the wishes and feelings of children caught in high conflicts over contact and residence may be a potential harm to the child and of dubious value.

If this consultation is because of allegations of sexual abuse or phsyical abuse then any questioning should follow Scottish Government guidelines for joint invetigative interviews.

How are child's views best heard in court (Question 2)

Improvements to the current process for obtaining views including the current revision of Form 9, and the use of trained Child Welfare Reporters or specialists to take children’s views at a time when they are away from both parents.  If trying to control costs, consider using services like Avenue.

The views of children should be obtained away from the influence or presnece of either parent, either at school or in a neutral venue, and the person obtaining the views should meet the child more than once to build up confidence and also establish that what is being said is not being influenced by either parent. Training in domestic violence and parental alienation should be obligatory for people undertaking reports.  While obtaining the views of the child is very important, these views should only form part of any consideration and should not be the determining factor. 

Sheriffs and judges sometimes see children thenselves.  While this judicial intervention can be useful, it should only be carried out under certain conditions and the sheriffs and judges who wish to talk to children should all have undertaken appropriate training, as is done in countries such as Germany [link]. In Denmark judges will only see children alongside a xxx.  Obtaining information by talking to children in the context of a court case is a difficult job, and thefore sheriffs and judges who undertake this task have to be fully prepared to undertake this work properly.

All children of school age should have the right to speak to a judge, and there should a a clear understanding about how this is done and what information, if any, can be kept confidential and what informatuion has to be disclosed th=o their parents and to appropriate authorities (such as alleagistions of sexual abuse or other child protection issies). 

Child Inclusive mediation, as developed in Australia (http://childrenbeyonddispute.com/child-inclusive-mediation/) should be tried in Scotland and assessed as a way of providing early support to both parents and children in separated families. This early investment has the potential to produce savings by reducing the amount spent on court action. It should also assist children to present their wishes in family law proceedings, and to have those experiences thoughtfully considered by their parents and the dispute resolution practitioners involved, thereby meeting requirements of the UN Convention on the Rights of the Child more effectively than at present.

How should court decisions be explained to children (Question 3)

This important function is now taking place in a few Scottish court cases, but it should become a routine part of all family court actions.  In cases where the decision of the court runs counter to some apsect of the expressed wishes of the children, the shreiff or judge should

Child welfare reporter training and oversight