When Scottish courts are asked to make decisions about children – whether in relation to residence, contact, guardianship or other matters under the Children (Scotland) Act 1995 — the paramount consideration is always the welfare of the child. This principle runs through all of family law and has been reinforced by later reforms, most recently in the Children (Scotland) Act 2020.

The Paramountcy Principle

Section 16 of the 1995 Act makes clear that whenever a court determines any matter concerning a child, the child’s welfare throughout their childhood must be its primary consideration. This means:

  • The interests of the child come before those of the parents.
  • Decisions must be guided by what is in the child’s best interests, not what is easiest or fairest for adults.
  • The court must also avoid unnecessary delay, since delay itself can harm a child’s welfare (a principle added by the 2020 Act).

The Child’s Right to be Heard

A vital feature of Scottish family law is that children are not treated as passive subjects of decisions – they have the right to have their views heard and taken into account.

The pre-2020 position

Under the original wording of the 1995 Act, where certain orders were being considered (such as exclusion orders), the sheriff was required, so far as practicable:

  • To give the child the chance to say whether they wanted to express their views.
  • If they did, to provide an opportunity to express those views.
  • To take those views into account in line with the child’s age and maturity.

Children aged 12 and over were presumed capable of forming a view.

The 2020 Reforms

The Children (Scotland) Act 2020 made significant changes by strengthening children’s participation rights. Section 1(6) of the 2020 Act replaced the old subsection (2) with a new duty:

  • The sheriff must now give the child the opportunity to express their views either:
    • in the manner the child prefers, or
    • in a manner suitable to them if no preference is expressed or if their preference is not reasonable in the circumstances.
  • The sheriff must then have regard to those views, taking account of the child’s age and maturity.
  • There are only two exceptions where the sheriff does not need to seek the child’s views:
    1. If the child is not capable of forming a view.
    2. If the child’s location is unknown.
  • Importantly, the new law states that children are presumed capable of forming a view, unless shown otherwise. This removes the automatic age threshold of 12 and ensures younger children are given the chance to be heard if they are able and willing. Of course, the younger a child, the less weight their view will be given in determining the overall position of the court.

Safeguarding and Public Protection

Section 16(5) also recognises rare circumstances where the welfare principle may be adjusted to protect the public from serious harm. In such cases, a determination can be made even if it does not fully reflect the paramountcy of the child’s welfare. These situations are exceptional, often linked to public protection orders or criminal law intersections.

Why This Matters

These provisions are crucial because they establish:

  • That children’s welfare is the overriding priority in every court decision.
  • That children have the right to be heard, no matter their age, so long as they are capable of forming a view.
  • That courts must treat delay as potentially harmful to children.
  • That parents and professionals must expect children’s voices to play a central role in decisions affecting their lives.

Practical Implications for Families

  • In practice, a child’s views can be gathered in several ways: through a Form F9, by a child welfare reporter, or in some cases directly by the sheriff.
  • Parents should be prepared for the court to place weight on the child’s expressed wishes, provided those wishes are considered consistent with their welfare. The weight a sheriff will give a child’s opinion will depend on their age and maturity.
  • Even very young children may now be heard, shifting the balance of how Scottish courts approach residence and contact disputes.

How XK Solicitors Can Help

At XK Family Law Solicitors Aberdeen, we specialise in cases involving children’s welfare and participation rights. We can:

  • Advise parents on how the courts apply the welfare principle.
  • Guide families through the process of gathering and presenting a child’s views appropriately.
  • Represent clients in residence, contact and specific issue order cases under Section 11 of the 1995 Act.

The law in this area continues to evolve, but the direction is clear: in Scotland, children’s voices must be heard and their welfare must always come first.

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