SCOTTISH EXECUTIVE CENTRAL RESEARCH UNIT
Scotland's Children Children (Scotland) Act 1995 Research Findings No.2
Giving due regard to children's views in all matters that affect them
Voice of the Child Under the Children (Scotland) Act 1995:
Kay Tisdall, Rachel Baker, Kathleen Marshall & Alison Cleland
With contributions from Alexandra Plumtree and Jo Williams
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The feasibility study sought to examine how best to conceptualise and evaluate how decision-making in children's lives takes due account of their views, with particular attention to processes related to Part I of the Children (Scotland) Act 1995 and the implications for compliance with the UN Convention on the Rights of the Child.
As this was a feasibility study, the substantive findings must be qualified by the small number of informants. Some findings, however, have been widely confirmed by other research - these are starred below. Other findings are suggestive rather than conclusive and require further research.
- Children and close adults felt they lacked sufficient information, at a time and in a format that they needed. The media was their prime source of information and it was frequently misleading.*
- While many children in the focus groups had experienced parental separation or divorce, none of these children had had their views 'formally' considered in court proceedings either by legal representation or using any other mechanism.
- Children's involvement tended to be dependent on parents' initiative. Children, however, were often hesitant to burden their parents further during parental separation or divorce. Children thought they would be asked to choose with which parent they would like to live.*
- Some children perceived lawyers to be unapproachable or feared that they would not be treated as equal to adults. The majority of children were unfamiliar with courts, and found them intimidating.*
- All children who had been independently represented by a lawyer reported significant benefits to their general wellbeing. Many felt that it was the first time their views were being heard clearly. Their parents and other adults confirmed these benefits.
Background to the Study
The Children (Scotland) Act 1995 brings together aspects of family and child care law, and amended adoption legislation. The Act deliberately seeks to incorporate the 3 key principles of the United Nations Convention on the Rights of the Child _ i.e. non-discrimination (Article 2); a child's welfare as a primary consideration (Article 3); and listening to children's views (Article 12) -- into Scottish legislation and practice. In fact, in making decisions about parental responsibilities, courts must take children's welfare as the paramount consideration, which is considerably stronger than Article 3.
The particular focus of this study was on family law proceedings (Part I of the 1995 Act). In considering whether or not to make an order on parental responsibilities (Section 11), children must be given an opportunity to indicate whether they have views. If they do, children must be given the opportunity to express their views and the court must have regard to such views. These provisions are subject to practicality and the child's age and maturity.
Various procedural mechanisms and legal provisions were enhanced or created by and following the 1995 Act _ these are documented within the full reports. For example, a person under the age of 16 now has the legal capacity to instruct a solicitor in any civil matter, when that person has a general understanding of what it means to do so. Without prejudice to the generality of that subsection, a person 12 years of age or more is presumed to be of sufficient age and maturity to have such an understanding.
Beyond the court proceedings themselves, parents and others exercising parental responsibilities and rights must have regard to children's views in making major decisions about such responsibilities and rights.
As this was a feasibility study, the substantive findings must be qualified by the small number of informants. Some findings, however, have been widely confirmed by other research _ these are listed separately below. Other findings are suggestive rather than conclusive and require further research.
Findings confirmed by other research
Lack of information: Both children and 'web' adults (i.e. those adults children said had supported them in expressing their views) felt they lacked sufficient information, at a time and in a format that they needed. The media was the prime source of information, which was frequently misleading.
Barriers to children's expression of views: Children's involvement tended to be dependent on parents' initiative. Children, however, were often hesitant to burden their parents further during parental separation or divorce. Children thought they would be asked to choose with which parent they would like to live.
Opportunities for children to express views and receive support: Beyond parents, older siblings, grandparents, friends and youth leaders were cited as important sources of advice and support. Teachers were also considered an important potential source of information and support, but children were wary of teachers' inability to maintain confidentiality.
Findings confirmed by other research that have direct policy implications
Information dissemination: Following the 1995 Act, the Scottish Executive commissioned the Scottish Child Law Centre to produce information designed for older children. The result was the magazine-style 'You Matter'. In view of the Scottish Executive's commitment to informing children, participants were asked whether they had seen 'You Matter'. Virtually no participant said s/he had seen it.
Barriers to children's expression of views: Some children perceived lawyers to be unapproachable or feared that lawyers would not treat children as equal to adults. Training for lawyers in working with children could form a key component in raising the profile of representing children within the profession in general. Findings suggest that the provision of child-friendly places for interviewing children would improve their experiences.
The majority of children were unfamiliar with courts and found them intimidating. Policies to improve children's experiences of court should take into account the suggestions of children who have given their views in court. These include a tour of the court before the hearing (note this would not typically be covered by legal aid), a video to watch to prepare them for the procedures and possible outcomes, and access to a companion (who is not directly involved in the case) when waiting for proceedings in court.
Findings requiring further research
Improving access to information: Effective information dissemination strategies need to be identified and enacted.
Gender differences in communication and being legally represented: Boys appear to find it less easy than girls to talk about their feelings and opinions on family matters. It appears that fewer boys than girls seek independent representation, although this would require quantification to confirm. If true, why such variation occurs, and potential barriers, require exploration.
Barriers to children's expression of views: While many children in the focus groups had experienced parental separation or divorce, none of these children had had their views 'formally' considered in court proceedings either by legal representation or using any other mechanism. Given the small sample size in this study, the question remains as to whether children are successfully using the range of mechanisms available when they wish to articulate their views. If they are not using these mechanisms, why they are electing not to express their views should be investigated.
No official monitoring is required of non-contested agreements and none was reported.
A friendly approach by lawyers and a relaxed atmosphere during consultation were critical to young people's positive experiences of independent representation. Children who were independently represented did not feel they had been offered a choice in solicitors, though they were satisfied with them. Given the limited number, and selection biases, of those children interviewed who had had representation, further research is required to explore how lawyers and other representatives can effectively engage with children.
Court and associated procedures: The level of distress to children and parents caused by delays and prolonged legal proceedings calls for further exploration of the causes and potential remedies.
All children who had been independently represented by a lawyer reported significant benefits to their general wellbeing. Many felt that it was the first time their views were being heard clearly. Their parents and other adults confirmed these benefits.
Impact of disability and ethnicity: Findings from this study suggest that children with a disability and/or from a black and minority ethnic group may face particular barriers to expressing their views. In regard to disability, this may primarily be due to the attitudes of adult 'gatekeepers'.
Identifying mechanisms to keep children informed: Children wished to be kept informed of the process and outcomes of the legal proceedings, yet no official mechanisms exist to this end. For this research, children asked for feedback every 2-3 months.
Specialism and training: All of the legal professionals consulted advocated further consideration of specialist training for legal professionals.
About this Study
Conceptually, the study investigated children's experiences from the perspectives of key participants _ professionals involved in the processes, parents and, vitally, the children themselves. Methodologically, the study sought to develop methodological tools and identify key issues for more in-depth research.
The study produced two outputs: (1) A 'mapping paper' providing a detailed analysis of the whole Act, accompanying regulations and guidance, and relevant reported case law; and (2) A report of the feasibility study itself, including literature reviews on relevant research and methodology.
The study sought to involve 4 different groups of children:
(A) children who were represented by a solicitor or curator ad litem in formal court proceedings on parental responsibilities;
(B) children involved in formal court proceedings but not formally represented;
(C) children who had experienced parental separation or divorce but were not involved in formal court proceedings;
(D) children who had not experienced parental separation or divorce.
Four focus groups were undertaken through youth groups, involving 26 children. 17 children were interviewed individually (accessed through focus groups or solicitors). Vignettes and drawing methods were used. Children were aged between 8 and 18, with the majority aged 11-16, and there was some diversity in ethnicity, disability and gender. No group (B) children were recruited, perhaps because the 1995 Act had only recently been implemented and the access methods used.
Children individually interviewed were asked to identify 3 'web' adults who had supported them in expressing their views. Four children's 'webs' were followed-up, resulting in 10 'web' adult interviews.
Seven legal professionals were interviewed: 4 sheriffs, 2 solicitors and 1 family mediation respondent.
Ethical considerations were a high priority and are outlined in the full report.
The Children (Scotland) Act 1995 Research Programme aims to monitor the implementation of the Act and to evaluate its operation and impact. Research within this programme is commissioned by the Justice and Education Departments of the Scottish Executive. Research Findings are published by the Central Research Unit and the Education and Young People Research Unit.
If you want further copies of this Research Findings or have any enquiries about the work of the research units please contact us at:
Scottish Executive Central Research Unit (Tel: 0131 244 3759)
3rd Floor West Rear
St Andrew's House
EDINBURGH EH1 3DG
Education and Young People Research Unit (Tel: 0131 244 0634)
This document, other CRU and EYPRU publications, and information about CRU and EYPRU can be viewed on our websites at http://www.scotland.gov.uk/cru/ and http://www.scotland.gov.uk/edru/
If you want a copy of the 'Voice of the Child' Feasibility Study, the report that is summarised in this Research Findings, please contact the Central Research Unit at the address or telephone numbers given above.