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'Voice of the Child' Under the Children (Scotland) Act 1995: Volume 1-Mapping Paper
Chapter six: Part III and Schedule 2 of the Children (Scotland) Act 1995
6.0.1 Statutory references in this part are to the Adoption (Scotland) Act 1978, unless otherwise stated. Comment is focused mainly on the 1997 Sheriff Court Rules. Generally speaking, the Court of Session position is similar, except in relation to the appointment of a curator, which is not mandatory in any Court of Session adoption process.
Which decisions require children's views to be considered?
6.1.1 Section 6 places a duty on adoption agencies and courts to consider the views of the child in "any decision relating to the adoption." This covers all planning decisions by the adoption agency (who may or may not be a local authority) and all decisions by the court, including procedural decisions such as whether views should be treated as confidential. The reference to adoption includes not only adoption, but also freeing or revocation of a freeing.
6.1.2 Given the wide-ranging nature of the duty in Section 6, most situations in the process of adoption etc. are covered. The Adoption Agencies (Scotland) Regulations 1996 reiterate the duties imposed by Section 6 in relation to recommendations by adoption panels, in Reg 11(5), but all the other decisions taken in these regulations, and the decisions about an adoption allowance in terms of the Adoption Allowance (Scotland) Regulations 1996, are governed by the principle of taking account of the child's views.
Which children are included in any such requirements?
6.2.1 No fixed age is set out in Section 6; the reference applies to all children. Agencies and courts need to consider the views "so far as practicable", "taking account of his age and maturity". However Section 6 (2) also states the presumption that a child of 12 years or over shall be presumed to have a view. It must be remembered that this covers not only the court process but also agency decisions.
What processes are specified for ascertainment of the child's views?
6.3.1 In court applications, the sheriff court rules for adoptions, freeings for adoption and revocations place a duty on the curator to find out whether the child wishes to express a view, and if so, to ascertain that view. Thereafter, the view would be expressed in a report, although it may be expressed orally (A.S. 97 r.2.8(2)(d) & (3), r.2.16(1)(c) & (2) & r.2.26(2)(u) & (3)). However, while the appointment of a curator is mandatory in adoptions and freeings for adoption, it is not mandatory in revocation applications. Therefore, the process of obtaining the child's views may not be so easy unless a sheriff decides to appoint a curator in these proceedings. The sheriff still has a duty to seek and consider the child's views.
6.2.2 Children's views may be treated as confidential in all three procedures in terms of A.S. 97 r. 2.9(2), 2.17(2) & 2.27(2). As indicated above, a sheriff's decision about whether to treat views as confidential or not should be made on the basis of putting the child's welfare as paramount, given the terms of Section 6.
6.2.3 A child may instruct a solicitor to appear on his behalf if he has an understanding of what it means to do so, in terms of the Age of Legal Capacity (Scotland) Act 1991.
6.2.4 So far as agency decisions are concerned, there is no process specified in the Adoption Agencies (Scotland) Regulations 1996 for the ascertaining of these views, and there is a definite gap in respect that there is no provision that a child may attend his or his adoption panel. Such a provision would be helpful. However, almost all agency adoptions are in relation to children who are 'looked-after', at least up until the adoption and/or freeing is granted, and therefore the agency/local authority will use its/their normal processes with regard to 'looked-after' children in terms of Section 17 of the 1995 Act.
What weight is to be given to the child's views?
6.3.1 Section 6 requires the agency and the court to "have regard so far as practicable" to the child's views, "taking account of his age and maturity". There is no prescribed age, apart from the presumption that a child of 12 or over shall be presumed to be of sufficient age and maturity to form a view. The 1997 Sheriff Court Rules do not add anything to the weight or age position. However in all three processes, where a child has indicated his wish to express a view, the sheriff "shall not make an order" unless "an opportunity has been given for the views of that child to be obtained or heard". (A.S. 97 r.2.9(1)(b), r.2.17(1)(b) & r.2.27(1)(b)).
6.3.2 In all freeings for adoption, and in all adoptions, including post-freeing adoptions, the child of 12 or over is asked for his or her consent; no freeing or adoption can be granted without that consent. The only way in which consent may be dispensed with is if the court were to consider that the child was incapable of consenting. This means that the views of a child of 12 or over are crucial to the process. (Section 12(8) & Section 18(8))
6.3.3 Consent of a child is not required to revocation, although the views of the child are required. It should be noted that, despite the mistake in the 1997 Sheriff Court Rules, (R.2.15 refers only to Section 20(1)), revocation applications are open not only to former birth parents, but also to local authorities, in terms of Section 20(1A), and may be more numerous.
Is there provision to feedback to the child about the decision and the consideration given to the child's views?
6.4.1 In the court processes, there is no provision for feedback. So far as agency decisions are concerned, there is no provision (although good local authority practice as informed by Guidance, particularly in relation to 'looked-after' children) that feedback should be given.
Comment on the above
6.5.1 Further thought needs to be given to the inconsistency of approach as regards the appointment of a curator, both between the sheriff court and Court of Session processes, and within the sheriff court processes themselves. The impact on the expression of the child's view needs to be assessed.
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