Should we be listening to children and young people directly, or hearing their views via their parents? This is a question that exercises the minds of those who work in the family law field and is receiving heightened attention from policy makers in Scotland at the moment.
Does it put pressure on children and young people when we ask them what they think and feel about difficult situations? How easy is it for children to say what they are really thinking and feeling about family issues without them worrying about upsetting one or other parent? Can children really be expected to understand the longer term implications of what they say they want or don’t want?
The law in Scotland[i] says that children and young people should be given an opportunity to express their views, feelings and wishes, and to have their views taken seriously, on any decisions that affect them, including those within the court process. Children also have the right not to express a view. Children need to know that the final decision is not their responsibility, however, and that what ultimately happens may or may not be what they were hoping for.
So how are we best to understand what children need and what a particular child thinks and feels about a family issue that their parents disagree about?
In the context of separation or divorce children can express their views by meeting directly with a specifically trained family mediator, children’s worker or child consultant, a court reporter or the sheriff/judge. They can express their views in writing on a form (an F9 Form) or they can be represented by their own solicitor.
Relationships Scotland has an established process of direct consultation with children within family mediation. Mediators undertake additional training to carry out this work. Even those who are enthusiastic about the benefits, however, recognise the limitations of parental capacity to respond appropriately to feedback from children and age suitability. Over 60% of children whose parents are in mediation with Relationships Scotland are under the age of 8 years.
Discussions in England have raised concerns around age of competency to express views, consent, safeguarding, parental gate keeping, children’s rights versus parental responsibilities and whether there should be a presumption of child inclusion as the norm rather than consultation, as and when parents and the mediator consider this to be appropriate.
Scotland’s current Family Justice Modernisation Strategy includes a focus on the Voice of the Child. Scottish Women’s Aid and Scotland’s Children and Young People’s Commissioner’s Office have conducted research recently on how children affected by domestic abuse can be supported to express their views within the court process.
Relationships Scotland is keen to develop the debate in Scotland on how children’s views can be heard more effectively, especially in private family law cases. Professor Jenn McIntosh, a researcher and child inclusive practitioner from Australia, is presenting a seminar on the Voice of the Child in Separation and Divorce in Edinburgh in June. Professionals from a wide range of agencies will learn about best practice from other parts of the world.
One of the key messages from research is that children want to be involved in decisions that affect them. It is important to listen to what parents, children and young people all have to say about their family situation and to ensure those messages, as well as any developmental needs and safety concerns, are taken in to account.
We invite you to join the debate by responding to our blog.
Head of Professional Practice, Relationships Scotland
[i] The Children (Scotland) Act 1995 and the United Nations Convention on the Rights of the Child (UNCRC).