THE OBTAINING OF CHILDREN’S VIEWS IN COURT PROCEEDINGS FORM F9 IS IT FIT FOR PURPOSE?
On 22nd February this year discussions took place with the Equalities, Human Rights and Civil Justice Committee of the Scottish Parliament. One of the issues raised was the use of the Form F9 to take children’s views in court proceedings. Various contributors were of the view that the Form F9 was not the best way to obtain a child’s views. Indeed, some wished to entirely remove it as an option.
This article explores how the Form F9 has evolved over time, its current use, discusses some of the challenges around its use and potential other options available to the court to obtain a child’s views.
If a child wishes to express a view then they have both a right and an opportunity to do so. The court must regard those views. This is embodied in Article 12 of the United Nations Convention of the Rights of the Child, the Children (Scotland) Act 1995 and the Ordinary Cause Rules 1993 (“OCR”).
Currently children are not asked for how they might like to give their view. The court and therefore individual Sheriffs determine how their view be obtained.
A Form F9 is one of the ways the court can obtain the views of a child in an action concerning a section 11 order. There are others as discussed later in this article.
There is a specific style and format of this form as prescribed in the OCR. The most recent version has been in use since 24 June 2019. Prior to this there were another 6 versions dating back to 1 November 2011. Before the present form’s introduction, it was widely criticised and so there was much discussion surrounding not only the revision of the existing form to make it simpler, more child friendly and therefore usable but also how it was to be used.
The legislation directs how the Form F9 is to be used. The OCR were amended. Rules 33.7 A, Rule 33.19 A – D, and Rule 33.44 A- D were introduced by Scottish Statutory Instrument number 2019/123. The OCR now provides that the initial writ must include a crave for intimation and seeking of the child’s views in Form F9 (Rule 33.7A (1) (a)). A completed draft Form F9 must accompany the initial writ being sent to the court for warranting (Rule 33.7A (1) (b)).
Discretion is afforded to the Pursuer if they consider it is inappropriate to send the Form F9 to the child to therefore to seek to dispense with it but both a crave and averments must be provided to the court detailing why (Rule 33.7(2) (a) and (b) ).
The example afforded is if the child is under 5 years old. There is judicial support for this positon as intimation upon a 4 year old was specifically considered in the case of X v Y 2018 SAC (Civ) 10 by the Appeal Court who decided that it was “highly unlikely” that the Form F9 would provide a great deal of useful information to the court and instead ordered that a child welfare reporter be appointed to obtain the views of both the 4 year old and older 7 year old sibling. In the case of S v S 2002 SC 246 again the Form F9 was considered. In that case the court expressed the opinion that the Form F9 was a purely procedural mechanism and the only proper and relevant test was practicability. Both of these cases were of course before the new form was introduced.
There could be a myriad of other reasons why the Pursuer could conclude it is not appropriate to intimate the Form F9 upon a child. The child may have additional support needs which means they are unable to understand and /or complete the form. The child may also be subject to coercive or controlling behaviour by one parent or indeed abuse. They may be upset at receiving this form. They may not understand the form. They may be influenced by one parent. Children can be influenced either directly by one parent or indirectly, for example more subtly by one parent giving them more pocket money than the other or being allowed to stay up late in one parent’s home. Whilst these seem trivial at first blush they could well be relevant. Family solicitors must accordingly carefully consider the potential effects upon the child in considering whether to seek to send the Form F9 to the child.
The Sheriff must consider if the Form F9 is drafted appropriately and if the child’s views are to be sought by this method or an alternate method and grant warrant accordingly. Interestingly, the court requires intimation even in cases where the action is not defended (Rule 33.19). Provision is also made for the obtaining of a child’s views in a minute to vary action in which section 11 orders are sought. It is important to note that no copy of an initial writ or minute to vary is to be sent to the child with the Form F9.
Where the child has returned a completed Form F9 or has otherwise indicated a wish to express their views in terms of Rule 33.19 D the Sheriff must consider these views. An order must not be granted unless an opportunity has been given for the child’s views to be obtained or heard. Additionally, the Sheriff must consider these views and weight to be attached to them taking into account the child’s age and maturity in making any order. He or she can also order a fresh Form F9 be served upon the child. This is useful in obtaining updated views if the child’s views were obtained some time ago in the court action. The court must also record the views of the child and various methods are detailed for doing so dependent on the individual case ( Rule 33.20).
Our experience in various court cases regarding contact and residence disputes of children has been that prior to the new form being introduced there were various issues of concern. The form itself was clunky and not in child friendly language.
Another was that it was usually sent to the child at their home address. It could be intercepted by one parent who could either complete the form themselves (who would know?) or else the parent could tell the child what to say. Sometimes the form was not returned at all. It was difficult to know if what the form stated was actually the child’s views at all. As a result, neither solicitors nor the court were keen on the Form F9 being utilised.
What the courts tended to do therefore was to adopt an alternate approach to obtain the child’s views. This could be that the Sheriff interview the child themselves in chambers or appoint a child welfare reporter to obtain their views in terms of Rule 33.21. Occasionally a curator ad litem would be appointed. Implicit in all of these approaches was the assessment of what the child was saying and whether there was any degree of influence or coaching by one parent of the child. More information would also be available to the court in understanding why the child was expressing a specific view. Speaking to a Sheriff in Chambers could be an anxious experience for a child and so therefore the way in which a child’s views are taken needs to be carefully considered.
Rather more sparsely used was the local authority to prepare a report on a child in terms of Rule 33.21 A. This was because in our experience it concentrated more on the circumstances of the child and proposed arrangements for the care and upbringing instead of the views of the child. We have however seen some reports in the past which did detail the child’s views. These reports tended to take a long time to be completed and made available to the court.
The cost is also a factor. The use of the Form F9 is a less expensive option than the appointment of a child welfare reporter. This is relevant to privately paying parties and funding by the Scottish Legal Aid Board.
There is no doubt that the new form it is certainly being used more often than its predecessors but we are not clear as to what success. It is certainly more child friendly. The language is clear. Children are encouraged to draw if they do not wish to write upon the form to show what their views are. This is a helpful way for younger children to express themselves. We have found from our experience that the courts are seeking the views of children only over the age of 5 years old by this method. One novel way which we are aware of was a Sheriff directing that the Form F9 was sent to the child’s school which worked well.
Still however, the previous problems remain about influence and who is actually completing the form. Some forms are not returned at all. Do the children actually understand the form? Are they put off by the receipt of the form? Can they be bothered to complete it at all? Is it too clinical a way to obtain their views? Should the court instead appoint a child welfare reporter in a limited role to meet the child and complete the Form F9? Would that cause the child upset.
The Young People’s Commissioner in Scotland undertook extensive research about the Form F9 and the views of the consulted children were “don’t use the form, ask us”. We need to be cognisant of this. The question is how we ask children. That is beyond the scope of this article as much more in depth analysis will require to be undertaken to ascertain how to do this.
At the moment, solicitors need to consider each case and the ramifications upon the child of the intimation of the Form F9. Is it actually going to achieve the objective of obtaining the child’s true views? If not, consideration needs to be given to alternate methods. There are certainly other tools available in the court’s tool box to obtain these. The question is how they are utilised effectively to ensure that the court has before them the true views of the child as only then can the court make a decision about what is in the best interests of the child in conjunction with other information provided to the court in each specific case. Every child has needs specific to them and there will be no one size fits all solution. Having flexible options means a better chance of meeting each individual child’s needs and ensuring their views are taken into account.
This article was prepared by Nicola Buchanan, Senior Associate Director, in collaboration with Judith Higson, Executive Director, and Laura Cousins, Solicitor. We can be contacted on 0141 374 2121 or [email protected].
The content of this article is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Scullion LAW accepts no responsibility for the content of any third party website to which this article refers.