Time for a Radical Change in Scottish Family Law
Sunday, September 1, 2019 at 10:27AM
FNF Scotland in Court reform, family law

The Scottish Government intends to lay its long awaited Family Law Bill at Holyrood this coming week. It will also publish a broader Family Justice Modernisation Strategy.

FNF Scotland is publishing today its critique of where the present system falls short and our proposals for a radical change of approach, The Way Forward For Scotland.

The Way Forward For Scotland urges the government to take a radical approach to its task. There needs to be a paradigm shift in attitudes  and practice towards supporting coparenting of children when their parents do not live together. 

FNF Scotland's casework over 10 years shows the  present system lacks emotional intelligence when it steers parents who can't agree to share parenting into an expensive, interminable and disruptive adversarial approach in which a parent "wins" time with their children by criticising the skills and the character of the other instead of supporting them towards a solution that works best and reduces stress for their children.

FNF Scotland National Manager, Ian Maxwell, says, “Law by itself cannot solve every problem. A court is never a precision tool. However they do affect the approach, the language and the attitude of the many individuals and agencies whose job is to make it work.

 “We believe the 'winner-loser' approach in court and in pre-court correspondence between lawyers isn't best fitted for reaching decisions about parenting. The adversarial approach lacks incentives for separated parents to collaborate positively for the benefit of their children and at crucial points embeds disincentives to share parenting.”

FNF Scotland proposes:

SHARED PARENTING : The new law should include a presumption of equal parenting as a starting point if parents can't decide on the care pattern for children and have to go to court. It will be a rebuttable presumption if it can be established it is not safe or practical or sustainable for the children but the starting point will be equality and continuity of parenting. Arguments before the sheriff should be evidence-based and should allow the sheriff to be 'inquisitorial' in pinning down issues rather than presiding over an adversarial process in which parenting time is won by criticising the skills or the character of the other parent.

CHILD WELFARE REPORTING : A programme of induction, training and oversight of child welfare reporters should be introduced across Scotland. Child Welfare Reporters play a crucial part in sheriff court decisions but at present there is no required training, no performance appraisal and no transparency in the appointment process. Reporters should be required to have training in taking the views of children similar to that in Joint Investigative Interviewing.

SPEEDY CONTACT DECISIONS : The law should stress the importance of quick action to decide on resumption of contact and the benefits to children on seeing both parents. At present cases can drag on for months into years and cost tens of thousands of pounds without any resolution being reached. In the meantime the relationships between parent and child can be damaged and reduced contact can become a fait accompli.

TERMINOLOGY : Remove the terms “residence” and “contact” from the courts to stop one parent assuming they can make unilateral decisions on important parenting issues and demand control relations with schools and health providers. Replace with, for example, “Parenting Orders”.

VOICE OF THE CHILD : Improve the way in which children are involved in contact cases, both for collecting their views and giving them feedback on any court decision but without making the child bear the responsibility for choosing one parent over the other.

ENFORCEMENT : Change the procedures for enforcement of contact orders to allow for a range of sanctions including community service for persistent refusal to comply. Courts should also be able to order parenting/family therapy and measures to address Parental Alienation.

Article originally appeared on Families Need Fathers Scotland (http://www.fnfscotland.org.uk/).
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