Seeking the Views of Children: Judicial and Statutory Developments

What does the test of “practicable” mean, in the context of the court's statutory duty to seek the views of the child “so far as practicable”? This was the question faced by the Inner House in M v C, a case concerning whether it was practicable for a child to be asked whether he wished to express a view about a matter which concerned him. The guidance from the Inner House is very helpful, and is entirely in keeping with the general direction of travel in this area. This article will set out the facts and decision of M v C, and reflect on how it sits with the forthcoming reform in the Children (Scotland) Act 2020 (the “2020 Act”).

On an application for a contact order under section 11 of the Children (Scotland) Act 1995 (the “1995 Act”), a sheriff determined that it was not appropriate to seek the views of a child. As reported by the Inner House, his concern was that unsuitable information might be communicated to the child, who was just under five years old. However, his judgment did not expand on this: as the Inner House noted, “he did not explain the nature of the information or why it would not be practicable to ascertain the child's views without it being divulged”.¹ The sheriff refused the contact order. On appeal to the Sheriff Appeal Court (“SAC”), the appeal sheriff found that the sheriff had erred, through the failure to seek the child's views. The statutory test of practicability simply meant whether it was feasible to seek the child's views. The decision was then appealed to the Inner House.

Before examining the decision of the Inner House, it is useful to set out briefly the relevant law. The three principles contained in section 11(7) of the 1995 Act (and replicated in other child-focused legislation) have become a pillar of judicial decision-making concerning children.² These three principles are: (i) that the court shall regard the welfare of the child as its paramount consideration;³ (ii) that the court shall not make any order unless it considers that it is better for the child for an order to be made than none at all;⁴ and (iii) so far as practicable, taking account of the child's age and maturity, the court shall give the child an opportunity to say whether he wishes to express a view and, if he does so wish, give him an opportunity to do so and have regard to those views. Section 11(10) of the 1995 Act then introduces a statutory presumption that a child aged twelve or over is of sufficient age and maturity to express a view; as with any presumption, this can of course be rebutted, to allow a child under twelve to express a view (or indeed, to prevent a child over twelve expressing a view).

After nearly thirty years, the courts are well versed in these three principles, and most published judgments address them explicitly, to demonstrate how they have been applied by the court in reaching its decision. The question of practicability often focuses on whether it is feasible to seek the views of a younger child, as was the case in LRK v AG,⁵ decided in the month immediately before M v C. In LRK, the sheriff had not sought the views of a six year old child, on the basis that she was too young. In holding that the sheriff in LRK had erred, the SAC noted that he had not addressed the test of impracticability. Reiterating the approach taken in the leading case of S v S,⁶ the SAC concluded that any decision not to seek the views of the child must be clearly justified:

The child was aged 6 years at the time and of an age where an opportunity to take views could, on the face of it, be given. As was said in S v S...