My colleague Melissa Inman wrote an article in December 2020 on the process for views of children being taken, in court actions regarding their welfare. Drummond Miller was recently instructed as Edinburgh solicitors in an important appeal case (M v C [2021] CSIH 14) regarding the court’s duty when considering whether to explore children’s views before making an order under section 11 of the Children (Scotland) Act 1995.
In this case, a Sheriff had refused an application for contact and in doing so held it was not appropriate to enquire into any views the child, who was just under 5 at the time, might have. There was a concern that information not suitable for a child of that age might be disclosed, although the Sheriff did not explain what information or why or how he envisaged it would be disclosed.
The case was appealed to the Sheriff Appeal Court, who held the Sheriff had failed to apply the correct test, and that a child who is capable of forming a view has a right to be heard unless it is not practicable. The case was sent back to the Sheriff to proceed in light of the guidance.
This decision was then appealed to the Inner House of the Court of Session, where Drummond Miller was instructed as Edinburgh agents for the appellant. It was argued that the “practicability test” should allow a Sheriff to take into consideration potentially harmful consequences and that the original approach of the Sheriff was correct. The respondent argued that it was correct that the Sheriff had failed to apply the correct test, and it did not follow that welfare of the child was irrelevant.
The Inner House felt it was “inherently unlikely” in drafting the legislation Parliament intended steps to be taken to explore the views of a child no matter how harmful that would be. It referenced Article 3(1) on the United Nations Convention on the Rights of the Child, and that the welfare of a child and their best interests is the court’s overarching duty. It is the function of the court to look at the statutory provisions in context, and at their purpose.
The appeal judges had no hesitation in reading the test in section 11(7)(b) of the Children (Scotland) Act 1995 as importing a consideration of any harmful consequences for the child and whether they render steps to explore views as not practicable. However, in this case, the Sheriff did not apply the correct test and the appeal Sheriff was correct to send it back to him.
In giving the judgement Lord Malcolm re-states this important principle, which is likely to be referenced in future disputes regarding this issue: “If children are of sufficient age and maturity to form and express a view, their voices must be heard unless there are weighty adverse welfare considerations of sufficient gravity to supersede the default position.”
Drummond Miller appears regularly in Sheriff Court actions where consideration has to be given to issues surrounding children’s views and is also regularly instructed by solicitors across Scotland as Edinburgh agents in the Sheriff Appeal Court and Court of Session. Whether you are an individual looking for help, or a solicitor needing guidance in navigating the appellate courts, getting good advice is essential.
The Drummond Miller family law team is extremely experienced in dealing with all aspects of family law including separation, divorce, and child-related matters. If you would like any further information or advice, please get in touch with our experienced solicitors in Edinburgh, Dalkeith, Musselburgh or Bathgate.
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