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Entries in courts (7)


Study session on representing yourself in court

Following recent changes allowing lay representatives in Sheriff Courts, FNF Scotland is holding an event to consider the issues facing parents who represent themselves in court and to contribute to updating our guide to representing yourself in the Scottish Family Courts.

This session is at the Old Sheriff Courton Thursday 5th September from 13.30 to 16.30, bookings are free to FNFS members and £20 for non-members.

This event is intended to help people who are currently representing themselves in family actions in the Scottish courts or who are considering conducting a case on that basis.  The afternoon will cover key aspects such as preparing a writ, the different types of hearing, use of witnesses, cross examination and overall case preparation.

Although we cannot cram a law degree into an afternoon, the intention is that attendees will learn and share experience, and also make contact with others who are going through the same process.

Recent changes in the rules in Sheriff Courts have made it possible for people representing themself to have a Lay Representative (someone to speak on their behalf and help them present their case).  Families Need Fathers Scotland has helped in various family court cases over the past few years and we recently conducted a Proof Hearing on behalf of an unrepresented father.

Contributors include Emlyn Jones, who has extensive experience experience acting as a McKenzie Friend in the English courts, Billy Finlayson, a lawyer with long-standing experience of family cases and who provides assistance to FNF Glasgow members, and other FNF members who have experience in the Sheriff Court and Court of Session.


Family courts should be investigative not adversarial

Mr Justice Ryder, the judge who is in charge of modernisation of family justice in England, supported a change of emphasis for family courts in a recent speech.

Addressing the annual conference of Lawyers for Children, he suggested that : "The judge has to be more than the referee on a playing field where the parties (often without any direct involvement with the child affected) decide what issues they want to litigate and what evidence they are going to present."

"In future the judge should be the arbiter of what the key issues are that need to be decided so that the ultimate problem can be solved by the court and the judge should decide what evidence he or she needs. That may involve preventing parties litigating disputes that are not key i.e. where they are only marginally relevant and where it is not proportionate for the dispute to be resolved because the resolution of that dispute is not necessary for the ultimate decision that needs to be made."

"The problem can be described as how to retain respect for the court as the decision maker while involving professionals and families in the decision making process so that the family and their own community take responsibility for the problem to be solved and the solution identified, making the age old problem of compliance or enforcement of family justice a community and family based endeavour."

These comments come as English courts prepare for an increase of people representing themselves in  family cases when most legal aid is withdrawn next April.  Although Scotland is not affected by these cuts, this suggested move away from the adversarial approach to family cases could be just as relevant here.


Changing the culture: the challenge of B v G

The Scottish Child Law Centre, in association with the Murray Stable Family Law Group, is presenting a seminar on procedure and practice in contact actions.

In the recent case of B v G the Supreme Court criticised procedure and practice in contact actions.  It makes clear that our system is failing the children whose future is at stake. It may even be damaging them.

  We can reform pleadings, impose case management, change the structure of judgments, clarify the role of curators ad litem but, as Lord Reed points out in his judgment, we need a change in culture.

This seminar, 'Changing the Culture: The Challenge of B v G [2012] UKSC 21', which will be chaired by Janys M Scott QC, of Murray Stable, is designed to explore how this may be achieved.

The speakers - Catriona Whyte, Scottish Legal Aid Board; Sheriff Frank Crowe, Edinburgh Sheriff Court; Ross Macfarlane, Advocate, Murray Stable; Stephen Brand, Solicitor; Graham Harding, Curator ad litem; Ian Maxwell, Families Need Fathers Scotland; Louise Johnson, Women's Aid; and Morag Driscoll, Scottish Child Law Centre - will come armed with their best ideas. There will be an opportunity to discuss the potential for a new culture.

The seminar will be held on Friday 31 August 2012 from 10am-1pm (registration and coffee from 9.30am) in the Mackenzie Building, Old Assembly Close, 172 High Street, Edinburgh, EH1 1QX.

To book a place visit www.sclc.org.uk and download a booking form or contact them on 0131 668 4400; Email: enquiries@sclc.org.uk.


English Court of Appeal rules contact with children shouldn't be blocked

 A father who was denied access to his children for three years because it upset their mother suffered a breach of his parental rights,according to a recent judgement in the English Court of Appeal.

It was ruled not acceptable for the mother to block the father’s reasonable efforts to see his two daughters.

The case concerned a battle between an unmarried couple who had a six-year relationship. In 2008 the mother left home without warning, taking her daughters, who were then aged four and one, and refusing to let the father see them.

She accused the father of abusive behaviour, but nine of the 10 allegations were unproven. At one court hearing, he admitted spitting at the mother on one occasion. A district judge who heard the case in 2009 noted that the father was a “forceful character” whom the mother found difficult to resist.

In February this year, the father was banned by a family judge from having any direct contact with his children, now nine and six. He was told he could send his daughters cards, letters and gifts once a month, but could not see them because it would be too distressing for their mother.

The county court judge said that she would be “unable to cope” with the father seeing the children after she broke down in court and said the thought of it made her feel “exhausted”. 

The father’s lawyers challenged the judge’s decision, saying it had been based on a “momentary” display of emotion from the mother in the witness box and the views of a “lone” psychologist, who supported her case. The decision also went against the view of the independent advocate appointed for the children. 

The appeal judges accepted that the father’s exile from his own children’s lives violated his rights.
Lord Justice McFarlane recognised that it was “a very big ask” for the mother to accept that her children’s best interests lay in having two parents, not just one.

“Where, however, it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be,” he said.

The judge, sitting with Lord Justice Rix and Lord Justice Tomlinson, overturned the family judge’s order and directed the mother to “facilitate” contact. The process will take place under the supervision of a court-appointed guardian.


Parental alienation: why have the courts been so slow?

Professor Nicholas Bala from Queen's University Canada contributed an overview of parental alienation and the courts to a recent seminar in London. 

In it he examined why the courts in England have been less likely to identify parental alienation than courts in Canada and Australia.

His presentation covers the background to the topic and includes comment on the gender politics - pointing out that advocacy groups for both mothers and fathers use “welfare rhetoric” to deny and seek contact.

He poses the question: "Child support is state enforced, why not contact?"

By searching published case reports in England/Wales, Canada and Australia for mention of alienation he shows an upward trend in cases over time, although fewer reported cases in England and Wales.  In his study, 81% of alienating parents are female and 19% male.

The presentation goes on to discuss judicial presumption of contact, the use of experts in such cases, conflict reduction and parental education,  In his study of alienation cases, the residence of the child was reversed to the rejected parent in 26% of cases and modified to shared in 4% in English cases. 

He concludes that we need:

  • a “change in culture” – greater recognition by society, professionals and courts of harm to children from high conflict, value of less adversarial dispute resolution, but also importance of role of both parents in lives of their children
  • a legislative declaration about presumptive value of relationships with both parents after separation (provided not adverse to child’s safety). Legislation needed to educate parents, lawyers, mental health professionals & judges
  • effective judicial control & timely intervention
    - in high conflict cases, early effective judicial intervention is critical
    - in the most severe and intractable,  courts need to make earlier use of contempt and change in residence