Jennifer Maciver: With children, there’s a fine line between protection and exclusion

When a legal matter involves a child, there is a fine line between protecting the child and excluding them from something which directly impacts them. Recent announcements from the Scottish Government suggest more will be done in this often difficult situation.

Jennifer Maciver is Legal Director and Head of Family Law, Gillespie Macandrew LLP

Ministers are consulting on incorporating the United Nations Convention on the Rights of the Child (UNCRC) into Scots law, which would guarantee that children’s rights are woven into policy, law and decision-making; and 2019 will see the introduction of a Family Law Bill.

The Family Law Bill aims to help ensure that family court cases involving children have children at their centre. By truly focusing on the child, the Bill should mean that the child’s views are considered, dealt with quickly, only dealt with in court when essential, and lead to the best possible outcomes for children.

On the one hand, this sounds completely uncontroversial, almost a given. The reality however, is that current legal procedures and processes are often subject to delays which slow down the decision-making process. This means court cases involving children take too long, often years, and the child is not always heard properly. The Scottish Government is explicitly saying it wants to tackle both of those problems.

The Government has made a start on tackling the second issue. The first question to ask is if and when a child should be involved in a court action at all. Going back to first principles, it’s only fair to ask a person if they want to express their views when a judge is making a decision about them. That said, when it comes to the point of involving a child in a court action, understandably, some parents or carers find this difficult, driven by a desire to protect children from disputes and negativity. There is an inherent tension in this situation.

Similarly, it would seem right and fair that when a child gives personal information, it should be confidential. It’s not easy to balance that right to confidentiality against parents’ right to a fair hearing. Indeed, sometimes knowing the child’s views can be helpful in encouraging a compromise or forming the basis of an agreement, and so avoid the need for any ongoing court action.

There is no single cause of the existing problems in family court cases, but a number of related factors which can affect progress. There is a perception that legal aid causes delay, but there is also a longstanding issue with a lack of available court time, overstretched services and a lack of specialist family sheriffs. The Children’s Hearing system also suffers from endemic delays, which can have a knock-on effect to the Court system. The way in which children’s views are recorded is also outdated – sending a formal court form to the child in the post, often containing legal language, with no oversight from the court of what is being asked or who is helping them to complete it. There is a need for an overhaul of the current system, along with a need for funding, resources and training.

The first of the improvements will shortly come into force, with a new form and process for children who wish to give their views to the court being introduced from 24 June. For many, it will still involve writing down their feelings and sending that to the court, but the experience should be improved. The new form has been designed for children and is much more user-friendly, opening with a letter from “the person who helps the judge”, with the words “You have been sent this letter because the judge will need to make a decision about you… the judge wants to know what you think about that”. Compare this against the existing text-heavy form which begins with the impenetrable “Form of intimation in an action which includes a crave for a section 11 order” and continues in the same fashion. The improvement is stark.

The fact these issues have made it on to the Government’s legislative agenda is good news for children and families in Scotland. The introduction of the new forms (and updated procedure alongside them) is an important first step towards making it easier and less traumatic for children to have a say in decisions that affect them. Hopefully the Family Law Bill builds on this as it also looks to tackle the court delays currently affecting children’s lives.

Jennifer Maciver is Legal Director and Head of Family Law, Gillespie Macandrew LLP