Are you thinking of raising a court action, but are worried about what might happen at a child welfare hearing?
Those concerns are understandable. So to help put your mind at rest, here’s what to expect.
Child welfare hearings
When someone raises a family action in court and there’s an issue concerning a child of the marriage or relationship that’s ended, the court will fix a child welfare hearing.
When COVID-19 restrictions were in place, these hearings took place over video link or conference call, but now we’re back to in-person hearings.
Who attends the hearings?
The parties in the action, usually the parents — but can be grandparents, for example — must attend as well as the lawyers they’ve instructed, the sheriff and the sheriff clerk.
Are hearings like this open to the public?
No.
Family hearings like this are always conducted in private.
What should I wear?
There is no dress code.
The advice I give clients is that it’s best to dress in a way that shows that you take the hearing seriously and that gives a good impression to the sheriff right from the start.
Will I have to speak?
Maybe.
Chances are there will be a lot many cases calling on the same day as yours and, as you’d expect, there’s restricted time for each hearing.
Sheriffs normally like to hear submissions from the lawyers so they get a clear idea of what needs to be discussed and decided that day. Some do like to ask the parents questions directly though.
The best way to deal with any questions is to be candid and simply answer what’s been asked. If you would like to share some additional information with the court or ask a question, just ask the sheriff’s permission.
Will a final decision be made at that hearing?
In family cases, it’s not always possible to make a decision at the first child welfare hearing, but — in line with the Children (Scotland) Act 1995 — the court’s focus is always on the child’s best interests.
Sometimes before he or she makes decision, for more background, the sheriff might order a child welfare report (previously referred to as a bar report) from an independent family lawyer or your council’s social work department.
In more complex matter, a child psychologist may be asked to prepare a report.
If this happens, the hearing will be continued for several weeks so these documents can be prepared and then lodged with the court.
You’ll then have to have another hearing and the sheriff will make their decision based on any report’s recommendations.
If a report isn’t needed, the sheriff will make an interim order (a provisional order) for your child’s care arrangements and the case will be continued to another hearing to monitor arrangements.
If it looks like changes to the arrangements are needed, the sheriff can vary them at the next hearing.
How many hearings will I have?
The Scots Law system means a family can have as many as they need until final arrangements are in place that are in the best interests of your child.
On average, arrangements for the children can be set in place, monitored and then finalised over the course of two to three child welfare hearings.
Does my child get a say in what happens?
In terms of the family law legislation, children of 12-years-old and over are expected to be able to express a view on their care arrangements.
If children are aged 5-years-old and upwards they will be asked whether they wish to express a view on their care arrangements. There are several different ways the court can find out a child’s view — one of these being a F9 form.
This can be sent to the child at home or to their school so their teachers can help them fill it in.
If the sheriff has already asked for a background report or child welfare report to be prepared, the person preparing the report may be asked to include the child’s views. If a child wants to come in to speak to a sheriff, then this can be arranged, but it won’t be on the same day as the hearing.
Can my child come to court with me?
It’s not appropriate to take your child along to court when a decision is being made about them. It’s best to make alternative care arrangements.
Summary
Before you come to court the first time, it helps if you are well versed on what’s likely to be discussed at the hearing as well as the legal position when it comes to your child, your family circumstances, and the law in Scotland.
Understanding all of this in advance will help minimise any concerns you have and will allow you to focus on the issues at hand and make informed decisions.
Of course, we can help support you through the process — whatever happens — as well as offer advice about raising an action. Alternatively, if you’d prefer to avoid court, we’ll work with you to try to resolve the situation. That includes through the likes of collaboration or mediation.
You can also look at our previous commentary for further information.
