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Entries in family law (12)


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.


FNF Scotland comment on Dumfries false rape allegation case

In a judgement issued recently from Dumfries Sheriff court the sheriff concluded that a mother had made a false allegation of rape against a father in connection with a contact dispute (para 76).

Comment by FNF Scotland national manager, Ian Maxwell:

"This is a thorough analysis over 61 pages by Sheriff Mohan of the facts and circumstances of the events which led to the relationship between a father and his children being abruptly severed and fundamentally damaged.

While we understand that the mother in this case was suffering from severe depression, it is regrettable that her own family, friends and professional agencies saw their role as supporting  "her plan to leave with the children" and adding to it, rather than finding ways in which both parents and children could be supported to deal with her depression and other material stresses.

However, in the context of the current Scottish Government review of family law, this case illustrates the importance of early findings of fact where serious allegations are made by one parent against the other.  It also stresses the importance of objectively assessing the authenticity of the expressed views of children about contact with their parents after separation, especially where extremely hostile views have replaced a previously comfortable and affectionate relationship overnight. Sheriff Mohan questioned the credibility of the letters written by the children in this case.

This is not the first case where the intervention of a support agency has been found by a sheriff to have added to the sort of psychological and emotional damage on children that it was purporting to protect them from.

Sheriff Mohan has ordered that contact between the father and his extended family and his children be restored and we wish all of those involved well in recovering from the damage they have suffered.


Publication of family court judgements

The selection of academics and campaigners who gave evidence to the recent Scottish Parliament Justice committee 'post legislative scrutiny' of the 2006 Scottish Family Law Act were agreed on at least one matter - urging that more judgments should be published on the Scottish Courts website.

The witnesses, including Families Need Fathers Scotland and Scottish Women's Aid, agreed that the present situation in which only a small proportion of the decisions made in family law cases are published and largely at the initiative of individual sheriffs inhibits the development of a corps of knowledge that would not only keep researchers, legislators and other judges informed of judicial thinking but also help members of the public get a sense of what they can expect from the courts. 
FNF Scotland reads the judgments in those family cases that are published to learn how the courts are handling crucial issues. There have been extremely interesting judgments recently.  
In one a sheriff set out detailed reasons for refusing a mother's application to relocate to the other end of the UK because it wouldn't be in the interests of the children and also comments robustly on the admissibility of expert evidence in such cases.
In another a Court of Session judge criticised council social workers for attempting to reduce a mother's contact to virtually nil "because, having settled upon permanency as being appropriate from as early as 2009, they shut their eyes to any other possibility, viewed any behaviour by M [the mother] which did not fit with their plans as hostile and not to be trusted and, by applying a somewhat twisted logic, treated that behaviour as proof of the correctness of their determination to proceed with their plans."
In a third a sheriff in Moray warned a mother that she "needs to examine her motives.  She needs to examine her attitude.  She needs to reflect on what is truly in the interests of the child. ..." in attempting to reduce the fathers contact to zero.
But we are aware these published judgments represent only an extremely small proportion and rather random sample of the many family cases heard in the sheriff courts each year.
Most of the family cases raised in court in any year - 13,600 in 2014-5 - are settled before the stage at which a judgment is issued (2014-15 civil justice statistics). 
The great majority of family cases are recorded as divorce or dissolution  However, the 2014-15 tables list 2,582 under Parental Rights and Respnsibilities including 1,281 actions for contact and 729 actions for residence raised in the Sheriff Courts. 
The statistics give only a limited picture. They under-estimate the total number of contact and residence issues  raised in the courts. This is because only the principal crave in any court action is counted.  If the principal crave, for example, is for divorce the 'ancillary' contact and residence issues are likely to be missed by the present system for capturing data.
The tables also give a breakdown of disposals dismissed, defended and undefended, and granted in favour of the pursuer but they can't distinguish which parent is the pursuer or the extent of the contact granted in the spectrum from equally shared care to supervised or indirect contact. The Scottish government statistics service has been working on improving 'data capture' with the Scottish Court Service.
Although not every judgement contains new circumstances or significant developments of judicial interpretation we feel that there is a public interest to be served in the publication of all the family judgements in the new Sheriff Appeal Court and a more systematic approach to identifying informative judgments from the sheriff courts rather than just those which are considered noteworthy by the sheriff or judge concerned.
The judgment is already issued to the parties. Of course the text would have to be anonymised to protect the interests of the children involved before it is uploaded to the Court Service web site. That doesn't seem a major additional burden.
In order to improve case management, we need more information on what is actually happening, so that sources of delay can be identified, and inconsistency in court practice across Scotland can be avoided.
Routine publication of judgements will help to provide this information. It would also be helpful to publish more comprehensive statistics on issues which relate to case management, such as the number of child welfare hearings per case, and the number of court days taken up in family proof hearings.




Justice Committee supports Scottish Family Law reform

The Scottish Parliament Justice Committee has reported on its recent scrutiny of the Family Law (Scotland) Act 2006 – passing to its successor a strong case for a broad review of Scottish Family Law.

The committee invited written evidence from a range of legal academics and interested organisations, including Families Need Fathers Scotland, and held two oral evidence sessions.  Ian Maxwell of FNF Scotland took part in the second session.  Issues discussed included parental rights for unmarried fathers with children born before May 2006 and the requirement for a judge to take into account allegations of domestic abuse – or the prospect of domestic abuse – when determining the best interests if the child.

The Committee acknowledges that its scrutiny exercise was a rapid exploration of the effect and effectiveness of the Act but that the views that had been submitted to it had spilled over into a broader consideration of the state of Scotland's family law.

In effect, the Committee says, “It is a report to our successors on the next justice committee, setting out views on which aspects of family law covered in the 2006 Act they may wish to consider in more depth in the next session.”

Ian Maxwell, National Manager of FNF Scotland, said, “We are very grateful to the committee for undertaking this short, sharp exercise. The committee acknowledges that its conclusions are therefore more in the nature of observations than recommendations. However, we feel in time it may be recognised as an important milestone in the modernisation of family law in Scotland by opening up a range of fundamental issues for its successor to explore."

"It will give them the opportunity to take in new insights into family life as it is lived across Scotland, allowing the debate to move on from present entrenched positions. We hope that this will result in legislation that seeks solutions to problems that arise when parent separate that promote parenting rather than control it.”


Scottish referendum: changes for separated families  

Some commentators have compared the Scottish Independence Referendum to a divorce or separation process, and the arguments about who gets what powers and resources if there is a Yes vote on September 18th may seem awfully familiar to many separated parents.

As a registered charity, Families Need Fathers Scotland cannot enter the debate on one side or another, but we can provide information about potential changes to various systems that affect separated families

Family law in Scotland is already distinct from the rest of the UK, and Scottish courts are independent, so there is not much scope for change.  However, one aspect of family law would be affected if Scotland becomes independent.

Cross-border issues, such as decisions as to whether contact cases should be heard in Scotland or elsewhere in the UK, applications to move children to other parts of the UK, and enforcement of court orders within the UK can be problematic at present.  Sometimes there is a race to reach the preferred court first.

If Scotland were to become a separate state  and sign up to to international treaties such as the Hague and Brussels Conventions some of the processes and relationships between the Scottish and other UK courts might become clearer. 

Whatever the result, FNF Scotland will continue to press for this cross-border process to be made simpler and clearer.

Health, housing and education law and systems are separate in Scotland already, so the referendum result is unlikely to bring about much change.

Social security including child support is decided at UK level and built on UK-wide law at present so there is scope for major change to occur were Scotland to separate. There have been suggestions from various sources that in the event of a No vote further powers might  devolved in this area but nothing has been specified as yet.

Child maintenance already has some different features in Scotland, such as Scottish children of 12 and over being able to apply for maintenance and the 12-month period during which a Scottish Minute of Agreement takes precedence over an application for child support.  If Scotland was no longer part of the UK a new child maintenance system would have to be created and the existing operations of the CSA and its successor the Child Maintenance Service would have to be separated out.

Many other parts of the social security system, such as the workings of Child Benefit and other benefits and tax credits, the "bedroom tax" and the support offered to single parents are currently decided almost entirely at Westminster.  A few decisions are already made by Scottish Government or individual Scottish local authorities, such as eligibility criteria for school clothing grants.

Employment law, which includes factors affecting families such as parental leave, is all decided at Westminster, although support for childcare for working parents is affected by decisions made at both Holyrood and Westminster.

None of the laws and systems affecting separated parents will change immediately, but whatever the result of the Referendum, there will be a need for both reconciliation and mediation after September 18th.