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Entries in Court of Session (2)


Court of Session takes long-term view in contact decision

A child contact case that had been in a succession of courts for 7 years - almost all of the life of the child involved - appears to have reached a conclusion in a judgment by Lord Brailsford.

Scotland's senior family judge ordered that direct contact by a father with his son should be re-established over a period of three months and he urged both parents to put the past conflict behind them in the greater interest of the child's welfare.

Lord Brailsford took into account statements by the child in the past that he did not want to see his father.  However he also took into account the expert evidence of child psychologist, Professor Tommy MacKay, who told the court he considered the boy’s views about contact with his father to be genuine, “but that they are not independently formed views”. The boy’s mother holds “... an unflinching view that [the father’s] intentions are not arising from a genuine interest in contact [with his son] but rather from an aspiration to abduct him.”

He stated: “The child had clear knowledge of his mother’s negative views towards his father.”

As a result the child had formed negative views towards contact based upon what was said and done by his mother, whether intentionally or not. The Professor believed that the child would be extremely concerned that any acceptance of his father by him would cause upset to his mother and this was something he would be anxious to avoid doing.

Professor MacKay, who produced seven reports during the seven years this case has been in court,  cited evidence that children who do not have contact with both parents have, as a group, a greater propensity to experience difficulties academically, psychologically, emotionally and in future relationships in later life.
The court also heard evidence from a social worker who had supervised a contact centre session that the father is a “… caring and loving father who got on well with his son and who had his son’s best interests at heart.”

Lord Brailsford states in his judgement that these are very significant considerations which the court cannot ignore, going on to note that: “I have to weigh the potential for adverse effects in later life against a child’s currently expressed opinion against contact, always bearing in mind that that expression of view has been engendered by his mother’s attitude and that when he actually experiences contact he enjoys meeting his father.”

In connection with the mother’s fears, Lord Brailsford concludes: “… [the mother’s] expression of fear of abduction of her son is genuinely held. I do however go further and express the view that even if that belief is genuinely held there is no objective or rational basis for it at the present time.”  He then set out the various protective measures such as passport surrender and Port Alert Orders which could prevent any such abduction.

The father in this case is from Tunisia, but has lived in Scotland for more than ten years and is settled here with a steady job. The mother, who is Scottish, met him in Edinburgh in 2004 and they married in Tunisia in 2006, their son being born in 2007. They separated in 2008 and divorced in 2013. Contact was regulated by court orders from 2009, but the father hasn’t seen his son since an unsuccessful contact centre session in 2013.

Families Need Fathers Scotland has been helping the father during the last 18 months of this court action. National Manager Ian Maxwell commented:

“This Court of Session judgement emphasises the importance of a court taking expert opinion on what is in the best interests of a child, rather than just trying to work out what the child is saying.  Although the term 'parental alienation' is not used in the judgement, the evidence provided by Professor MacKay indicates signs of some of the characteristics of that condition.  Sometimes the courts have to take the weight of 'choosing' one parent at the expense of the other off the shoulders of a young child.

While we welcome the judgment and hope that both parents will now manage to make this contact work, we are extremely concerned that the case has taken so long in court.  Seven years of uncertainty in the life of a nine-year old is intolerable.

The Supreme Court judgement in 2012 on NJDB v JEG commented on the glacial pace of proceedings in another child contact case which had the effect of 'overshadowed the life of this young child, perpetuating and deepening the conflict between his parents'.

Although this case was more firmly managed, at least during its final stages in the Court of Session, and contact is being restored, it shouldn’t have taken nearly so long in court.”

Two recent European Court of Human Rights judgements have ruled that a father’s Article 8 rights have been breached by the excessive length of contact proceedings,  with damages  awarded against Germany and Poland respectively.

FNF Scotland is currently preparing proposals in connection with the promised review of Scottish family law, including imposing timescales for decision-making in such highly conflicted cases, more awareness training for legal professionals on parental alienation and more support for judges in identifying interventions that can assist the whole family move on from entrenched conflicts. 


FNF Scotland submits views on lay representation in court

Scottish courts should make it easier and simpler for people to represent themselves in family cases, and it should be possible for their non-legally qualified helpers (lay assistants) to speak up in court as well as offering whispered advice.

These points are made in a submission by Families Need fathers Scotland to a consultation on lay representation in the Court of Session and Sheriff Courts.  These views will be considered by a working group chaired by Lord Pentland.

In making the case for simpler and more permissive procedures, we suggest that various factors including the reduced availability of legal aid will lead to increased amounts of self representation in the Scottish Courts. 

The new rules should be consistent across all civil courts including any new courts arising from the implementation of the Gill review in coming years.

Our submission includes mention of how Mckenzie Friends operate in English and Welsh courts, where it is not unusual for them to be allowed to address the court, particularly when the person they are supporting is not confident or articulate.   

In support of this being allowed in Scotland, we mention the situation in which a parent has to be cross-examined, suggesting that it is preferable that this is done by someone other than his or her ex-partner if that person is representing themself.

FNF Scotland has already published a guide to representing yourself in the Scottish courts and are keen to hear experiences of party litigants.