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New insights from Mark Thorley, co-founder of Thorley Stephenson Solicitors regarding LRK v AG [2021] SAC(CIV) 1.
The recent case of LRK v AG [2021] SAC(CIV) 1 has reinforced the premise that the court was bound to ascertain a child’s views unless, as a matter of practicability, it was impossible to do so. This case involved a then six-year-old child and the court took the view that not only was the child too young to express a view but also that it would be difficult to try and ascertain what these views would be.
The Appeal Court were of the view that since the child was age six and of an age where an opportunity to take views could, on the face of it, be given, that it was the court’s duty to attempt to obtain these views. Although it might prove impracticable, they decided it was the court’s duty to come to a view on that.
The issue then arises as to when is a child too young to give a view? That was deemed to be impractical.
The difference arises between what is “impracticable” and what is “impractical”. Impracticable means that something is unable to be put into practice while impractical is used where something is neither sensible nor useful.
In the context of taking the views of the child, impracticable simply means ‘must be obtained unless impossible to do so’.
Legislation will shortly come into force which will underline that the only qualification is the capability of the child forming a view.
Mark Thorley is a Scottish Solicitor and Director of leading Edinburgh-based law firm, Thorley Stephenson. You can connect with Mark on the following channels:-
CaseCheck
www.casecheck.co.uk 
