Views of the child in family and civil partnership actions
The Family Law Committee (“FLC”) of the Scottish Civil Justice Council (“SCJC”) has been working for some time on an instrument that will replace the court form used to seek the views of children in family and civil partnership actions. The Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 was laid before the Scottish Parliament on Friday, 29 March 2019. It inserts new forms to replace existing Forms F9 and CP7 in Chapters 33 and 33A respectively of the Ordinary Cause Rules (“OCR”) and Form 49.8-N in Chapter 49 of the Rules of the Court of Session (“RCS”). The new rules come into force on 24 June 2019.
Background
It has long been recognised that there is a need to overhaul the forms currently used for intimation to a child in family actions involving a crave for a section 11 order[1] – not only in terms of making the design more child-friendly, but also simplifying some of the vocabulary used. This is particularly important since the forms do not only inform children about the section 11 order that the court has been asked to make, they also provide an opportunity for children to let the court know their views.
The SCJC has consulted children and young people, as well as a number of organisations that work with and represent them, about how the existing forms could be improved. The FLC has incorporated many of the suggestions and feedback received from children and young people. A graphic designer was appointed to give the forms a more colourful and child-friendly ‘look and feel’.
Rather than simply replacing the existing form with a revamped document, the FLC decided to take the opportunity to flesh out what the current rules say about sending the form to a child. Among other things, the new instrument makes provision about the point at which the form should be sent, who should send it, and makes sure the child’s views are sought when a party makes an application after final decree.
The FLC acknowledges that a form is not always the most appropriate way to obtain a child’s views. The Scottish Government has indicated that it intends to introduce a Family Law Bill into the Scottish Parliament, which is likely to include provisions on how best to obtain the views of the child. In the meantime, the instrument replaces the existing form and introduces new rules providing clarity about its use. Additionally, the Scottish Courts and Tribunals Service plans to look into the possibility of enabling children to submit their completed forms electronically.
Summary of key changes made by the draft instrument
In order to simplify discussion of the instrument, the key changes are explained with reference to Chapter 33 OCR and Form F9. The changes that have been made to Chapter 33A are almost identical, and Chapter 49 RCS has been aligned with this as far as possible (although some adaptations were necessary due to differences in Court of Session and sheriff court procedure).
The Act of Sederunt amends three chapters in total: Chapter 33 OCR (family actions), Chapter 33A OCR (civil partnership actions) and Chapter 49 RCS (family actions). Further, the instrument does not only insert new rules relating to principal proceedings; it makes provision about post-decree applications too. The need to set out any new provisions in numerous different places in the court rules inevitably makes this amending instrument somewhat repetitive.
Procedural clarity
Existing court rules do not make any provision about the point at which the Form F9 should be sent to the child, nor do they say which party is responsible for sending it. In practice, this can mean that the form is sent to the child as soon as the pursuer has raised the action and obtained warrant to intimate. At that point in time, it is not known whether or not the action will be defended or whether the defender will seek a section 11 order.
Where it turns out that both parties seek a section 11 order, there is the possibility that the child will be sent a second Form F9 – this time asking for views on the order sought by the defender. FLC members thought this was far from ideal, echoing the comments of consultees that it can be demoralising for children to be repeatedly asked for views.
The instrument therefore sets out detailed rules about this – see, for example, new rules 33.19 to 33.19C. These rules make it clear that the Form F9 should not be sent to the child until it is known whether the action will be defended. They also specify which party should send the form and when, depending on who seeks a section 11 order.
It will normally fall to the pursuer to send the form, even where both parties seek a section 11 order (in those cases, the pursuer must include wording in the form to describe the section 11 order sought by the defender). The defender will only send the form to the child where he/she is the only party seeking a section 11 order (i.e. where the initial writ or summons does not include a crave for a section 11 order).
In addition to these standard default provisions, new rule 33.19D gives the sheriff the discretion to order a Form F9 to be sent to a child at any time. This could be useful in cases where a young child was not initially sent a form, but time has passed and he / she is now older and mature enough to express a view. It also covers situations where the child did receive a form, but due to the passage of time the sheriff thinks it would be appropriate for another one to be sent – just in case the child’s views have changed, for example.
The instrument also includes rules about sending a Form F9 to a child in situations where a party lodges a minute for variation of a decree relating to a section 11 order (see, for example, new rules 33.44A to 33.44D). These rules mirror the procedure that applies in the principal proceedings.
Judicial oversight of the forms to be sent to the child
As part of the consultation exercise, some concerns were expressed about the possibility of parties sending inappropriately framed forms to children. The main worry was that the dispute might be described in language intended to influence the child or using difficult legal terminology.
As a way of addressing this, it was agreed that a draft Form F9 should be submitted to the court along with the initial writ / summons (or notice of intention to defend / defences, where applicable), showing the details that the party proposes to include when the form is sent to the child. The court must be satisfied that the draft form has been prepared appropriately. An example of these provisions can be seen at rule 33.7A (1)(b) and (3).
Sending the forms to young children
The FLC had concerns that in many cases, parties ask the court to dispense with intimation in Form F9 simply because the child is under 12 years of age. In part, this may be due to section 11(10) of the Children (Scotland) Act 1995, which provides that ‘a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view’.
FLC members are very keen to bring about a culture change. Many children a lot younger than 12 are capable of filling in a form to express their views, even if they require help to do so. New rule 33.7A (2) therefore provides that where the pursuer ‘considers that it would be inappropriate to send Form F9 to the child (for example, where the child is under 5 years of age)’, the initial writ must contain a crave to dispense with intimation in Form F9 and state the reasons why it is inappropriate to send Form F9 to the child.
Guidance published by the SCJC
The SCJC has published guidance to assist with preparing and sending the new Form F9. This is published on the ‘Publications’ page of the SCJC’s website[2].
[1] An order under section 11 of the Children (Scotland) Act 1995 relating to parental responsibilities and rights (such as contact arrangements, where the child should live, etc).
[2] www.scottishciviljusticecouncil.gov.uk