Can a Child Choose Which Parent to Live With in Scotland?

The short answer is that at age 16, a child in Scotland has the absolute legal right to decide where they live. Below 16, a child's views are heard and considered — but they don't have a binding vote. The Sheriff makes the final decision based on what's best for the child's welfare, with the child's expressed wishes being one factor, not the only one.

What changed significantly in 2020 is how those views are gathered and how seriously they must be taken.

The Old Rule (Before the 2020 Act)

Under the original Children (Scotland) Act 1995, there was a statutory presumption that a child aged 12 or older was mature enough to form a view on residence and contact arrangements. Children younger than 12 could express views, but there was no presumption that they were capable of doing so.

In practice, this meant courts routinely sought the views of children aged 12 and over, and often didn't ask younger children at all — especially children under 8.

What the 2020 Act Changed

The Children (Scotland) Act 2020 scrapped the age-12 presumption entirely. The new position is:

Every child, regardless of age, is presumed capable of forming a view. The burden is reversed — a court now has to positively demonstrate that a specific child can't form a view, rather than assuming younger children can't.

Courts must offer the child their preferred format for expressing views. The old approach relied heavily on Form F9 — a paper form sent to the child. The 2020 Act requires courts to facilitate expression through whatever means the child is comfortable with: drawings, play therapy, video recordings, speaking to a trained professional, or the revised Form F9 itself.

The court must explain its decision to the child. After making its order, the court has to communicate the outcome to the child in an age-appropriate way. This is new — previously, children were often left in the dark about why the court made the decision it did.

How Form F9 Works

Form F9 is the court-approved document used to seek children's views in Section 11 proceedings. The revised version introduced under the 2020 Act is designed to be child-friendly rather than legalistic.

Both the pursuer (the parent who starts the case) and the defender (the other parent) must each lodge a draft Form F9 with the court when filing their respective documents. This prevents the old problem where only one parent shaped the questions put to the child.

The form asks the child about their current living situation, what contact they have with each parent, what they'd like to happen, and whether there's anything that worries them. There's space for the child to add their own comments in whatever form they choose.

The child isn't compelled to complete the form. They can refuse, and the court must respect that refusal. A child who doesn't want to express a view hasn't failed — they've exercised a right.

How Much Weight Do Views Carry?

A child's expressed views are one factor in the welfare assessment, alongside:

• The current stability of the child's living arrangements
• The ability of each parent to meet the child's needs
• The risk of harm from domestic abuse, neglect, or conflict
• The child's relationship with each parent, siblings, and extended family
• Practical considerations like school location and each parent's work schedule

The Sheriff weighs these views "according to the child's age and maturity." A 14-year-old's clearly articulated preference to stay with one parent carries more weight than a 5-year-old's expressed wish to live with the parent who has a bigger garden. But neither is ignored.

Critically, a child expressing strong views against contact with one parent will prompt investigation, not automatic acceptance. The court will want to understand why — is it a genuine response to harmful behaviour, or has the child been influenced by one parent's hostility toward the other?

The Child Welfare Reporter's Role

When the Sheriff wants a deeper understanding of a child's views and circumstances, they appoint a Child Welfare Reporter. This is an independent professional — typically a solicitor or social worker — who meets with the child privately, speaks to both parents, and sometimes contacts teachers or GPs.

The Reporter's job is to give the court a rounded picture of the child's life and views, free from the pressure of either parent's narrative. Their report includes a recommendation to the Sheriff, which carries considerable weight.

What Parents Should Know

Your child is not a witness in your case. They shouldn't be put in a position where they feel they have to choose sides. The court system is designed to gather their views independently, through trained professionals, precisely to avoid loyalty conflicts.

If your child has told you they want to live with you, that's relevant — but it doesn't determine the outcome. The Sheriff's decision rests on the full welfare picture.

For guidance on how to prepare for the child-views process and what to expect from Form F9, see the Scotland Child Custody & Parenting Plan Guide.

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