By the children, for the children, Faculty suggests
Children should help design new legal documents to ensure the views of youngsters are heard whenever possible in family court cases, says the Faculty.
Currently, forms are used to inform a child of an action and to seek his or her views, but the forms have been widely criticised.
The Faculty describes them as “not fit for purpose…off-putting and difficult to comprehend.”
It says that under the United Nations Convention on the Rights of the Child, and the Children (Scotland) Act 1995, all children capable of forming views should be given the opportunity to express a view, which should be taken into account in accordance with their age and maturity.
“It is our concern that these forms can result in lip-service to…the Convention, rather than an effective attempt to assure children the right to express a view as intended by (the Act),” stated the Faculty in a submission to the Scottish Civil Justice Council which is considering changes to the form used in sheriff courts, Form F9.
The Faculty said it supported the replacing of the form, and the form used in the Court of Session, Form 49.8-N.
“They do not encourage a response. It is unsurprising that courts and professionals involved with children are on occasion reluctant to seek children’s views when doing so is perceived as associated with these forms,” the submission added.
“We would suggest that the Civil Justice Council should commission assistance from persons with qualifications and experience in communicating with children as to the best format and terminology for different age groups. We would suggest that advice is sought from both child psychologists and teachers.
“Groups of children and young people should also be asked to assist in the design. A similar piece of work was undertaken by the Scottish Child Law Centre who have produced a ‘Helping Hand Resource Pack for Contact’ designed to elicit children’s views. Children in residential care were themselves involved in the design of forms to communicate their views and produced effective materials to assist other children. This would be a good model for development of a replacement communication for present purposes.”
According to the Faculty, although the Act had been in force for 20 years, there were still misapprehensions about its effect. It contained a presumption that a child aged 12 or more would be of sufficient age and maturity to form a view, but that did not mean that younger children would not have views and be able to express them.
“On occasions, children under 12 are not offered the opportunity to express a view…In our experience, even younger children can have enlightening comments on their situation, if given a proper opportunity to offer these. Failure to give an opportunity to provide a view may well result in injustice to a child,” said the Faculty.