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Entries in Court reform (7)


Time for a Radical Change in Scottish 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.


Family courts could be more inquisitorial

FNF Scotland has submitted a response to the Scottish Parliament Justice Committee, commenting on the Courts Reform (Scotland) Bill.

It expresses the hope that this implementation of some of the key points of the Civil Justice Review will lead to Family Court hearings in Scottish courts, with the new Summary Sheriffs trained and equipped to provide a faster and more specialised service.

We note in the submission that earlier this month Lord Thomas, Lord Chief Justice in England and Wales, said in a speech to Justice that an inquisitorial approach may be a better way of conducting family cases.

He was speaking with particular reference to the reported increase in the number of Litigants in Person in family cases south of the border but our experience is that as a general approach it has much to recommend it.

Proceedings and procedures in the family courts are in their origin the same as other forms of litigation such as personal injury or debt where the aim of going to court is to produce a clear result, a winner and a loser. This does not seem appropriate for settling most disputes about contact and residence after separation.

Courts cannot order parents to like each other but neither can they be blind to the consequences of the narrative unfolding before them that allows and sometimes encourages parents to attack each other’s character and history in order to seek short term advantage over each other at the expense of the long term contribution they (and their extended families) might both make to the benefit of their children.

Lord Thomas went on to acknowledge that some lawyers would see it as a "process alien to our adversarial tradition" and that research would have to consider whether an inquisitorial procedure would require more judges or a "new cadre of junior judges". That sounds remarkably like the proposal for summary sheriffs in the Courts Reform (Scotland) Bill.

It may be that such a change to the prevailing adversarial philosophy may need to be incorporated into the Bill or its accompanying Guidance.


Courts reform: culture change needed for family cases 

Families Need Fathers Scotland called for speedy and efficient administration of family cases, continuity of sheriffs/judges, and effective enforcement of court orders in our response to the recent Scottish Government consultation on the Courts Reform (Scotland) Bill.

The draft legislation covers a wide range of topics, as part of the major revamp of the civil courts. 

It proposes that a new "lower" tier of Summary Sheriffs are created, and asks specifically whether they should deal with family cases.

Our response indicated that "some of our members are concerned that ‘summary’ sheriffs may indicate a loss of status in family cases. That is a risk.  On balance we believe the new tier creates an opportunity to bring in a new generation to the bench and accelerate a culture change. We anticipate this may represent the first rung of a judicial career for experienced family law practitioners."

On the proposal to limit many cases to the Sheriff Court, we commented:

"A minority of our members have had experience of the Court of Session and they generally report a better experience than the larger number whose case has proceeded only in the sheriff courts."

"Our impression is that some of these cases might not have been so successful in some sheriff courts, especially where ‘new’ concepts such as shared parenting or parental alienation have been heard with respect and examined with care in the Court of Session but have been dismissed out of hand in some sheriff courts."

"Whichever Court hears the family cases, there is a need for sufficient training of sheriffs and judges in topics such as dispute resolution, domestic violence and its impact when experienced by both men and women, parental alienation, child protection, and the best procedures for consulting with children and ensuring continuity of contact."

"There is also a need for speedy and efficient administration of family cases, continuity of sheriffs/judges, and effective enforcement of court orders."


New Civil Justice Council to have a key role in court reform

The Scottish Civil Justice Council was established on 28 May 2013 under the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013. 

It will prepare draft rules of procedure for the civil courts and advise the Lord President on the development of the civil justice system in Scotland. The Scottish Civil Justice Council replaces the Court of Session Rules Council and the Sheriff Court Rules Council. 

The new Council will take over the rule drafting functions of those bodies and will also have a new, wider, role to advise and make recommendations on the civil justice system.

Two consumer representative members have been appointed to the Council:  Ian Maxwell, the National Development Manager of Families Need Fathers Scotland and Lauren Wood, Access to Justice Policy Officer at Citizens Advice Scotland. 


Family Court reform picking up speed

The working group on family court reform convened by Lord Brailsford will be recommending significant changes to procedures in family cases.

In a speech last week Lord Brailsford indicated that the working group will recommend that much more of each case should be conducted on paper and that specialist family sheriffs should take responsibility for case management and impose strict timetables.

These measures should prevent ex-partners from using the courtroom as avenue for continuing their own unresolved issues.

He also supports greater use of technology in the hearing of evidence, including video- and tele-conferencing. He gave the example of a recent Hague convention child abduction case in which evidence was heard using on online connection with a party litigant in Melbourne.

Families Need Fathers Scotland has offered to give our views on court reform to the working group.

A change to Sheriff Court rules that comes into force on June 3rd is intended to speed up proceedings in cases involving disputes over the care of children.

Before a proof hearing, a case management hearing will take place in order to consider the issues.  Before that hearing parties will have to to meet to discuss settlement, agree matters not in dispute and discuss what should be presented to the sheriff at the case management hearing.

This should help to streamline the proof hearing, as well as exploring any possible resolution beforehand.