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'Voice of the Child' Under the Children (Scotland) Act 1995: Volume 1-Mapping Paper
Chapter Five: Part II of the Children (Scotland) Act 1995, Chapter 4
5.0.1 Children who are subject to Parental Responsibilities Orders (PROs) are 'looked-after' children under Section 17 (6)(c) and are therefore subject to the Section 17(3) requirement that local authorities must take account of such children's views in making "any decision with respect to a child whom they are looking after, or proposing to look after". A fuller account of these responsibilities towards 'looked-after' children is set out in the commentary (above) on Chapter One.
Which decisions require children's views to be considered?
5.1.1 Section 16 (4)(b)(i) requires sheriffs to apply the process of seeking and having regard to a child's views, to the making, varying or discharging a Parental Responsibilities Order (PRO). Conditions, including contact, may be part of a PRO or a variation of PRO. The implication of Section 16(2) and (4) is that the insertion of any conditions forms part of the decision to make or vary and the child's views are therefore required.
5.1.2 However, it would appear that procedural decisions for the court are not governed by the requirement to take account of the child's views: for example, the decision as to whether the child's views should be treated as confidential in terms of the sheriff court rules. These decisions do not constitute making, varying or termination, but merely procedural steps in the process. (Compare McGrath v McGrath 1999 SLT (Sh Ct) 90 in Appendix A.)
5.1.3 This might be compared with the wording in Section 6 of the Adoption (Scotland) Act 1978, where the court's duty is to have regard to a child's views is "in reaching any decision relating to the adoption" (see below under adoption).
5.1.4 Local authority decisions about children who are subject to PROs, including internal "looked-after" reviews laid down in the Arrangements to Look After Children (Scotland) Regulations 1996, require children's views to be sought (Section 17(3) - see also Reg 5(3) and (4) and Reg 8).
Which children are included in any such requirements?
5.2.1 In the court process and in the local authorities' duties, no fixed ages are prescribed (except that provisions relate to children under 18). The duty is with regard to all children. The Section 16 presumption of maturity, in relation to a child who is 12 or over, applies here.
5.2.2 So far as the local authority duties are concerned, the consideration of the views of the child requires the authority to take account of the child's age and maturity. In Scottish Office Guidance (Vol.2, Ch.1, Para. 97), in relation to looked-after children, authorities are advised to invite to reviews a child of 12 or over and to consider younger children "in the light of their age and understanding."
What processes are specified for ascertainment of the child's views?
5.3.1 In court cases relating to PROs, the 1997 sheriff court rules, Chapter 2, Part V (A.S. 97), deal with the ascertaining of children's views. The Rules of the Court of Session do not have rules for these applications, as they can be dealt with only in the sheriff court.
5.3.2 In all applications for PROs, there must be a curator (A.S. 97, r. 2.39), whose duties include finding out from the child whether he wishes to express a view and, if so, ascertaining that view (A.S. 97, r. 2.40(2)(c)). The child's views may be given by the curator orally to the sheriff (A.S. 97, r. 2.40(3)). However, the appointment of curators is not mandatory in variations or discharges of PROs (A.S. 97, r. 2.44(3)).
5.3.3 If the child has indicated that he wishes to express a view, there are other options for ascertaining it. Rule 2.41 deals with the procedure where a child wishes to express a view, and sheriffs can order any appropriate procedural steps.
5.3.4 The sheriff may also treat the views as confidential - A.S. 97, r. 2.41(2). Although the child's views do not have to be sought as to whether the views should be treated as confidential, it is arguable in terms of Section 16(1) that the sheriff's decision about confidentiality is governed by the child's welfare as paramount. The wording of Section 16 is different in this respect to the wording in Section 11 discussed in the case of McGrath v McGrath above.
5.3.5 Guidance in relation to looked-after reviews encourages facilitating the expression of views by children, with or without an advocate (see section above on Chapter 1).
5.3.6 In any court case, and in relation to any other matter of law, a young person is entitled to instruct his or her own solicitor if he or she has an understanding of what it means to do so in terms of the Age of Legal Capacity (Scotland) Act 1991.
What weight is to be given to the child's views?
5.4.1 In the court process, the sheriff must "have regard" to the views expressed. In taking decisions about the child who is subject to a PRO, the local authority must "have regard" to the views, taking account of the child's age and maturity; no age is specified (Section 17(4)(a)).
Is there provision for feedback to the child about the decision and the consideration given to the child's views?
5.5.1 There is no provision for feedback from the court process. Guidance advises that, in reviews, "looked-after" children value the opportunity to be heard etc. and that children should be encouraged to participate, although there is no specific statement that a child not attending should be given feedback (see section above on Chapter 1).
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