Recent cases concerning the views of children or evidence concerning children, and a report on a study about taking children's views into account

The Centre for Research on Families and Relationships at Edinburgh University recently reported on how the views of children involved in contact disputes are taken into account.

It considered a sample of 299 children at two urban sheriff courts in 2007, with domestic abuse alleged in almost half of the cases. Fewer than half the children (42%) were given the chance to express a view. The majority did so via a reporter or curator, with less than 20% putting their views directly to the court in writing or by speaking to the sheriff.

Of those children whose views then became known to the researcher, 42% did not want contact with the non-resident parent, almost all of these (96%) describing abusive behaviour by that parent. In the absence of abuse allegations, most children wanted contact. However, for nearly one-third of children expressing a view, the outcome of the case was not consistent with their wishes.

The authors note that outcomes are most likely to correlate with children’s wishes when they want contact, and least likely to when they do not. They also suggest that children’s opportunities to express a view may be hampered by lawyers’ belief that these will not be their own views but those of a parent.

Of more concern, given that the reporter’s recommendations were almost always followed in the cases studied, is the finding that reporters vary considerably in the weight they give to children’s accounts of domestic abuse. The authors suggest that some children may find it difficult to have their fears about contact with an abusive parent taken seriously, and suggest more training for both lawyers and sheriffs on the impact of abuse on children.

On a related note, when cases involving children go to proof, they may raise the prospect of the children not simply expressing a view but giving evidence. A recent case at Kirkcaldy (JB v AG) highlights the issues which the court may face.

In this case the mother sought to reduce contact to nil, having served a custodial sentence for contempt after failing to comply with a previous contact order. When she indicated her intention to lead evidence from the child, then aged 7 1/2, special measures, including a shield from the parties in the courtroom and a supporter for the child, were duly ordered. However, at the start of the proof, Sheriff Thornton asked parties to consider the possibility of the child’s views being ascertained by other means, and it was agreed that she would meet the sheriff in chambers.

This arrangement broke down over the question whether the child could do so without a supporter, whose presence the sheriff was concerned might influence the expression of her views. Detailed discussions followed, which unfortunately are not fully narrated in the judgment, but of particular interest is Sheriff Thornton’s conclusion that he had no power to refuse to allow a lawfully cited witness to be called. The child did therefore give evidence, albeit with the sheriff ordering additional protective measures.

This case considers the extent to which a sheriff should evaluate new evidence an applicant claims to have when seeking a review of the establishment of grounds of referral. The disputed ground related to an injury to the child, the parents’ explanation having been rejected by the sheriff. The parents sought a review on the basis of expert evidence suggesting a further, different, explanation (having unsuccessfully sought an adjournment to allow the report to be completed). That application was refused and the parents appealed.

Section 85 of the Children (Scotland) Act 1995 provides that a review may only be sought where the applicant “claims to have evidence which was not considered” in the original application. This must be “evidence which... might materially have affected” the original decision, and be “likely to be credible and reliable” as well as admissible. The sheriff held that the applicants had failed to establish that their expert’s evidence would have materially affected the original outcome, nor (being critical of the report content and presentation) did he consider it likely to be reliable.

On appeal, the applicants argued that the sheriff should only have considered the “claims” about the evidence, and not the evidence itself. He should not have evaluated the report as if it were evidence, but simply treated it as an indication of the evidence the expert would be likely to give. The sheriff principal rejected this, holding that a sheriff is required to “look critically at the evidence which the applicant claims to have and to consider whether that evidence meets the tests” (of credibility, reliability and admissibility), and can look at the whole circumstances of the case when doing so. This suggests it will be important in s 85 applications to present enough information to get the evidence through the various legs of the test, rather than simply providing an indication of what it will be.

The Author
Dianne Millen, solicitor, Morton Fraser Family Law Team
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