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4.34The Commission preferred the term “views” to “wishes and feelings” as:

“it recognises that a young person may be ... capable of balancing his ... immediate wishes and feelings against long term considerations and the interests of others and [then] coming to a considered view as to what was the right course of action in the circumstances.”537  

They also preferred the term “maturity” rather than “understanding” “because it recognises that more than just cognitive ability may have to be taken into account”.538

4.35Even though the Commission found this view attractive, there were practical difficulties as it would be unrealistic to require a parent to consult on all decisions, however minor, relating to the child.  In any case, it would be difficult to impose any sanction for non-compliance: “The parent’s position is different from that of a local authority, which is accountable to the public and subject to judicial review”.539

4.36Consultees gave majority support for such a proposal which was then incorporated into section 6 of the Act, even though there were reservations expressed that it would be vague and unenforceable.  However, it was seen as an important declaration of principle.540  Norrie argued that “legally speaking, it is difficult to see how the obligation in s 6 can be enforced ... this provision is symbolic and educative and in these terms is not unimportant”.541

4.37Reflecting the change in ideology of the United Nations Convention on the Rights of the Child, section 6(1) provides that any person taking any major decision relating to a child in the exercise of any parental responsibility or right should, whenever practicable, ascertain the views of the child regarding the decision and give due consideration to them, having regard to the child’s age and maturity.  It seems clear that a decision about the future arrangements for the care of a child after divorce would constitute a “major decision”.542  The decision maker must also take account of the views of “any other person who has parental responsibilities or parental rights in relation  to the child”.  A child of or above 12 is presumed to be of sufficient age and maturity.

Age of maturity

4.38  Section 6(1)(b) provides a presumption that a child of the age of 12 or more has sufficient age and maturity to form a view regarding a major decision.  The Commission expressed concern that third parties should not be prejudiced by any failure of a parent or guardian to consult the child before dealing with the property of a child under the age of 16.  This was provided the transaction was entered into in

537 Ibid at  2.63.

538 Idem.

539 Ibid at 2.62.

540 Ibid at 2.64.

541 Supra at 341.

542 Sutherland, “A voice for the child”, Journal of the Law Society of Scotland, vol 41, No. 10, October 1996, at 391.

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