Scotland's Children Children (Scotland) Act 1995 Implementation Newsletter No 3

Form F9

Obtaining the Views of the Child in Family Actions

It is a clear principle of the Children (Scotland) Act 1995 that wherever possible and practicable, a child’s views should be sought on matters affecting them, and given due weight.

Children’s views in relation to family actions were already being sought prior to the Act, using the ‘Form F9’ introduced by the Ordinary Cause Rules of 1993. However, the form was criticised for not being ‘child-friendly’ and has now been revised in a process which has made every attempt to consult children on their own terms.

The new Form F9 will be sent to children when any order under Section 11 of the Children (Scotland) Act 1995 is sought.

The language used in the form is accessible to children - for example, the Sheriff is described on the form as ‘the person who has to decide about your future’. The form tells the child what is happening, how they can be involved in the process, and invites them to indicate whether they wish to express their views to the Sheriff.

The court has the option of deciding, using the information provided on Form F9, which method is best suited to obtain and convey the child’s views. A number of methods are available: the child can write to the Sheriff, or nominate someone to speak for them. Alternatively, the Sheriff could arrange for the child to come and speak to him/her or to appoint someone to go and see the child and obtain their views.

The important factor is that the Sheriff cannot grant any order, where a child has indicated on Form F9 that they wish to express a view, unless an opportunity has been provided for that view to be given freely.

How well the new form operates in practice cannot be properly gauged until it is in use. It will be monitored by the Sheriff Court Rules Council, and as with all new procedures, feedback will be welcomed in order that any difficulties can be addressed.

Recording the views of the child

The court rules contain provision to ensure that a record is kept of any views expressed by a child, either to the Sheriff personally or to any person appointed by a Sheriff to obtain the child’s views, or where the child has provided their view in writing.

The Sheriff in his discretion may direct that any written notes of the child’s views, including any submitted by the child on Form F9 or otherwise in writing, should be sealed in an envelope to be marked ‘views of the child - confidential’, to be kept in the court process but not to be recorded in the inventory.

Unless an order is made to the contrary, the envelope should not be opened by anyone other than a Sheriff. In such circumstances no-one else would have access to the envelope or its contents.

It is intended that these provisions will address and alleviate any concerns which children may have about anything they said getting back to either of their parents.

Of course, it will remain a matter for Sheriffs to decide whether, and to what extent, anything should be disclosed to parties or their solicitors on any views expressed by a child, as the justice of individual cases may require.