Interpretation of "Practicable" in Considering Child's Views: M v C [2021] CSIH 14

Introduction

The case of M Against C ([2021] CSIH 14) adjudicated by the Scottish Court of Session examines the judiciary's responsibilities regarding the consideration of a child's views under the Children (Scotland) Act 1995. This case primarily explores the scope and interpretation of the term "practicable" in Section 11(7)(b) of the Act, which mandates that a child's views be taken into account when making welfare-related orders, considering the child's age and maturity.

The parties involved include M, the pursuer and respondent, and C, the defender and appellant, represented by Drummond Miller LLP. The crux of the dispute revolves around whether the sheriff appropriately considered the child's views when determining a contact order, particularly in light of potential harms that may arise from such inquiries.

Summary of the Judgment

The Sheriff initially refused the application for a contact order, citing concerns about divulging information to a child under five years of age. Upon appeal, the Sheriff Appeal Court (SAC) determined that the sheriff had not applied the correct test regarding the practicability of seeking the child's views. The SAC emphasized that a child capable of forming a view has the right to be heard unless it is impracticable to consult them.

In the present case, the Appeal Sheriff contended that the sheriff failed to balance the child's welfare with the requirement to consider their views. The Court of Session upheld the Appeal Sheriff's decision, reinforcing that the term "practicable" encompasses considerations of potential harm to the child, thereby allowing for judicial discretion in determining the feasibility of seeking the child's input.

Analysis

Precedents Cited

The judgment references several key cases that shape the interpretation of Section 11(7)(b) of the Children (Scotland) Act 1995. Notably:

LRK v AG [2021] SAC (Civ) 1: This case highlighted the necessity for sheriffs to adequately assess the impracticability of consulting a child’s views, thereby setting a standard for future deliberations.
S v S 2002 SC 246: Emphasized the paramountcy of the child’s welfare in legal proceedings.
Woods v Pryce 2019 SLT (Sh Ct) 115: Reinforced the child’s right to be heard, aligning with the principles of the UN Convention on the Rights of the Child.

These precedents collectively underscore the judiciary's obligation to prioritize the child’s welfare while ensuring their capacity to express views is respected, shaping the Court's approach in M v C.

Legal Reasoning

The Court delved into the statutory interpretation of "practicable" within Section 11(7)(b). It determined that the term should not be interpreted in isolation but in the context of Section 11(7)(a), which mandates that the welfare of the child is the paramount consideration.

The Court reasoned that "practicable" should be understood flexibly, allowing for judicial discretion when seeking a child's views could potentially harm their welfare. This nuanced interpretation ensures that the child's best interests are not overridden by a rigid adherence to procedural obligations.

Furthermore, the Court emphasized that the judiciary's role involves ascertaining Parliament's intention through a purposive approach rather than a literal one. This method enables the Court to prioritize the child's welfare while fulfilling statutory duties.

Impact

The judgment in M v C sets a significant precedent for future cases involving the rights of children in legal proceedings. By clarifying the interpretation of "practicable," the Court ensures that:

The best interests of the child remain paramount, even when procedural requirements suggest otherwise.
There is a balanced approach between safeguarding the child's welfare and respecting their right to be heard.
Judicial discretion is appropriately exercised, preventing rigid application of the law that could inadvertently harm children.

Additionally, the decision influences the application of the upcoming Section 11ZB of the Children (Scotland) Act 1995, which further refines the courts' duties in considering a child's welfare.

Complex Concepts Simplified

Practicability Test

The "practicability test" refers to assessing whether it's feasible to consider a child's views in legal proceedings. The Court clarified that "practicable" is not merely about the ability to perform an action, but also about whether doing so would be in the child’s best interests without causing harm.

Paramount Consideration

A "paramount consideration" means that the child's welfare is the most important factor and overrides other considerations. In this context, even if it is technically possible to seek a child's views, it may not be practicable if doing so could harm the child.

UN Convention on the Rights of the Child (UNCRC)

The UNCRC is an international treaty that sets out the civil, political, economic, social, and cultural rights of children. Article 12 specifically grants children the right to express their views freely in matters affecting them, which the Court integrated into its reasoning regarding the child's right to be heard.

Section 11 Considerations

Section 11 of the Children (Scotland) Act 1995 pertains to making orders regarding the welfare of a child. Subsections (7)(a) and (7)(b) specifically address the prioritization of the child's welfare and the consideration of their views, respectively.

Conclusion

The judgment in M Against C [2021] CSIH 14 provides a pivotal clarification on interpreting "practicable" within the framework of child welfare proceedings. By harmonizing the statutory duty to consider a child's views with the paramount necessity of their welfare, the Court ensures a balanced and child-centric approach in legal decision-making.

This decision reinforces the judiciary's role in safeguarding children's best interests while upholding their rights to be heard, thereby shaping future applications of the Children (Scotland) Act 1995. Legal practitioners must now navigate a more nuanced understanding of practicability, ensuring that the child's welfare remains at the forefront of judicial considerations.

Ultimately, M v C stands as a testament to the evolving legal landscape prioritizing the nuanced interplay between procedural duties and the overarching imperative of child welfare.