Divorce and the interests of children

Separation and divorce can be one of the most challenging times for families, especially where there are children involved. Decisions must be made in the best interests of the children, but at what stage should their views be taken into consideration?

At what age can a child decide? This is one of the most common questions asked of family lawyers in relation to disputes concerning children. Most people believe the answer is 12. It is not. Currently at the age of  12 a child is deemed to have sufficient maturity to express his or her views. From 12 years and above the court must find out what a child’s views are in a case concerning that child, but, contrary to common belief, the child does not ‘get to decide’.

When you think about it, what would be the point of courts if the decision was made simply on what the child thought or wanted at any particular time? It is the court’s function to determine a dispute between parents, never the job of a child; and nor should it be.

The Children (Scotland) Act 2020, when it comes into forcemeans the age of 12 no longer has significance in family cases. In all cases a child’s views should be considered except where a child is not capable of expressing a view (e.g. a very young baby or toddler or where the child’s whereabouts are not known)

Patrick -v- Patrick 2017 SC GLA 46

In the case of Patrick -v- Patrick 2017 SC GLA 46, in what was then quite a radical approach, the sheriff wrote to the children involved to explain the decision reached, a decision which did not coincide with the views expressed by the children. This was an innovative move by the sheriff in this case. The court regularly has to take the views of the child. This can be done by a direct interview with the judge, or by way of a court appointed reporter who will meet relevant individuals including the children in order to give the court a rounded sense of the children’s views. The difference in this case was the sheriff took the time to tell the children what had been decided and why. This is now incorporated into the 2020 Act and if a court decides it is appropriate to do so, the court decision is to be explained to a child- in a way the child can understand. This might be done by the Judge in person or by letter or by a child Welfare Reporter meeting the child. The court need not do so if the child is not capable of understanding (very young children) or if the court does not think it is in the best interests of the child to do so.

The views of a child are to be taken in a manner that the child prefers or, if no preference is expressed or if such preference cannot reasonably be accommodated, the views are to be taken in a manner suitable to the child- having regard to the child’s age and maturity. The starting point is that a child is capable of expressing a view. So we will now have children very much younger than 12 being asked for their views.

Often in cases it is left to the parties themselves to report to the children on what the outcome is. This approach comes with some risk, for example, a report being coloured by the views of the reporting parent and, in turn, the child being left confused or with a skewed view of things. The way it was handled in Patrick – v – Patrick meant it was the sheriff who told the children directly what had been decided and in an objective manner. Importantly, the sheriff explained why she felt it was not in the children’s best interests to cut off any relationship with their father despite the children expressing the contrary view. What children want is not always in their best interests and this was recognised by the sheriff in this particular case. Time will tell how effective the courts are going to be at explaining its decisions to children.

Summary

Of course no one is suggesting that a child should be forced to continue with a relationship which is going to harm the child or is dangerous, but the number of those cases, relatively speaking, is very low indeed. In the vast majority of cases where a child is expressing a reluctance to continue with the relationship with a parent, it is generally a symptom of the dispute between the parents and it is also important to recognise that the child, depending on age and maturity, may well exhibit signs of allying him or herself with the parent with care. It must be very difficult for a child to live with one parent and yet remain immune to that parent’s views of the other. Equally, it must be just about impossible for a child in those circumstances, even if they wanted to have a good and normal relationship with the absent parent, to be able to express that opinion to the resident parent without feelings of guilt and betrayal.

There is still a very wide range of ways sheriffs and judges around the country obtain the views of the children involved in court cases. It is hoped that the new Act will make sure children are at the centre of proceedings and that there develops best practice in this area so that children can feel listened to, can be certain that their views have been taken account of but, that ultimately the decision is made by the judge, (or their parents if matters can be agreed eventually). This transfers any pressure and responsibility back to the adults where it belongs and away from children who, even if they are sufficiently mature are still, after all, children.

Legal disclaimer