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Entries in family law reform (4)

Sunday
Jul092017

England and Wales family courts pilot for 'settlement conferences'.

President of the Family Division in England and Wales, Sir James Munby, has given the green light to a number of family courts to pilot 'settlement conferences'.

The aim is to discover whether pursuing a less adversarial approach to resolving disputes between separated parents might lead to better outcomes for the children involved.

In a statement released by the Courts and Tribunals Judiciary, Sir James said, "Some Designated Family Judge (DFJ) areas are piloting settlement conferences. In a settlement conference, a trained family judge adopts an inquisitorial approach in order to encourage cooperation between parties with a view to reaching an agreement that is in the children’s best interests. I know that opinions on settlement conferences are divided but, in my view, it is an approach that is worth piloting in order to inform decisions on whether to take them further."

The pilot is supported by a package of training and guidance materials that Sir James urges judges to view before taking part in the pilot. The package includes videos, sample cases and practice directions.

FNF Scotland National Manager, Ian Maxwell, said, "We'll be watching the pilot and any subsequent evaluation very carefully. We have been saying for a long time that the adversarial procedures in Scottish family cases - including the pre court correspondence between solicitors - often create new conflicts between parents. It can make it more difficult for parents to co-operate in the interests of their children after the case is closed if the process itself has encouraged them to attack each other's character and parenting abilities."

Friday
Apr072017

'Leave to remove' judgment: lessons to be learned

There are two lessons to be drawn from a recent Court of Session judgement by Lady Wise refusing an application by a mother to relocate to England with their son against the wishes of the father.  FNF Scotland hope that this case will inform the coming debate on the review of family law and consideration of case management in family cases in Scottish courts.

The first is that any reform will have to be accompanied by a programme of public education – and political leadership - that parents who separate have a responsibility to their children to support their former partner's right to be their father/mother above any personal animosity they may still feel.

While we do not want to pick further at the raw wounds of the parties in that specific case, some of the observations made by Lady Wise are continuing themes in the stories we hear at our monthly group meetings around Scotland.

Not least of the resonances is in her observation that, “O [the child] is not a prize to be won or lost in this contest. He is a little boy with two parents whose ongoing involvement in his life he has come to expect insofar as a 2 year old child has any expectations.”

Lady Wise also explained why she was refusing the separate application by the mother for an order that she should be awarded residence with the child. It is one of the themes FNF Scotland will be stressing during the forthcoming debate and that underpins our campaign for a presumption of sharing parenting after separation.  

In refusing the application Lady Wise said, "I have already commented that she (the mother) seems to misunderstand the nature of such an order.  It would not give her the right to take important decisions about O’s (the child) care and upbringing, including his education, without reference to the defender." and adds "There are good reasons for not making a Residence Order in this case.  The absence of a Residence Order will send a signal to the pursuer that neither party has ultimate authority over this child.”

The terms “resident” and “non-resident” parent immediately invite parents and their families to perceive a difference in status between them.  The Children (Scotland) Act 1995 refers to "residence" and "contact" orders, which perpetuates this unhelpful distinction.

The second lesson we hope is taken seriously in the forthcoming debate concerns the current adversarial process in deciding family conflicts.  While such proof hearings may be successful in testing the evidence of the parties, this adversarial process may itself drive them further apart.  We have written before that parents have to find a way of collaborating in the interests of the children long after the judge has moved to the next cases and their solicitors have closed the files.

This proof hearing took six days in the Court of Session, with both parents and a large number of witnesses producing affidavits and giving evidence under oath, some of which Lady Wise found inaccurate and unhelpful.  The costs to each party will have been eye-watering.  Following this judgement the mother and father will have to co-operate with each other on bringing up their child for at least the next 15 or more years.  It would help if the maternal and paternal grandparents could be part of the solution not the problem, but this hearing allowed them to demonstrate from the witness box the substantial gulf between the two families.

If evidential hearings in family cases were held on an inquisitorial basis, with the judge deciding what evidence is necessary and conducting the examination of witnesses, such cases could be shortened and some of the hostility taken out of the proceedings.

No family case can be painless, but there is scope for significantly minimising the hurt and thereby making it easier for the parties to work together in future.  Child Welfare Hearings at earlier stages of family disputes are already conducted on more of an inquisitorial basis though the practice varies in courts across Scotland. At their best they focus proceedings on what both parents can do to support their children's wellbeing rather than running down each other's character.

Inquisitorial does not mean soft, but it could take some of the collateral damage out of a difficult process by avoiding some of the evidence that will have no bearing on the judge's decision but can further antagonise and undermine the parties. Lawyers will still perform a vital role, but the inquisitorial approach will focus far more on finding resolution rather than simply outgunning an opponent.

Family cases in some other countries are run on inquisatorial lines.  In an experiment in Oregon, parents were offered a choice of using traditional trials or an Informal Domestic Relations Trial (IDRT) in which the fact-finding and decision making process follows an inquisitorial route. 

Research published recently showed IDRT cases are typically docketed more quickly than traditional trials, last just a couple of hours and decisions are rendered promptly, usually the day of the hearing or trial.  The court retains jurisdiction to modify the process as fairness requires and to divert cases where domestic violence or other reasons render IDRT inappropriate.  There was a broad consensus that the IDRT process significantly enhanced the parties’ sense that the process was fair,  even when the outcome was not exactly what either party had advocated.

Wednesday
Sep072016

FNF Scotland comment on Scottish Government legislative programme

The Scottish Government has presented its list of proposed bills for the coming session of the Scottish Parliament.

Ian Maxwell of Families Need Fathers Scotland said today:

"We are still looking for more information on how the Scottish Government intends to take forward the SNP manifesto commitment to a review of family law. It will be encouraging if its absence from this session's legislative programme is an indicator that it is taking a thoughtful approach to the issues rather than rushing into legislation that will be in place for a generation. Family law and the recognition of the value of both parents to their children is, as the Council of Europe asserted last year,  fundamentally an equalities issue.

We are also aware from the cases that come to us from non-resident parents - mothers as well as fathers - and grandparents that too often turning off and on contact with children has become a form of coercive control by the parent with most care. The legislation in England and Wales made it effectively impossible for a non-resident parent to invoke the protections of the coercive control domestic abuse law and we will make representations to the Scottish Government that our legislation should not contain that loophole.

But of course, our ambition for Scotland is to change the culture in family law that too often pays lip service to putting the interests of the children first while persisting with an adversarial system that does the opposite." 

Monday
Jun202016

Shared Parenting: Better for Scotland's Children

In a report published simultaneously at Holyrood and Strasbourg FNF Scotland calls for a reformed Scottish family law to include shared parenting as its starting presumption rather than an outcome that has to be argued for often with great difficulty and at financial and emotional cost within the adversarial court system.

There is overwhelming evidence of the benefits to both parents and children of shared parenting from a broad range of studies and reports around the world. Children in shared parenting families have significantly better outcomes in terms of emotional, behavioural, and psychological well-being, as well as better physical health and better relationships with their father and their mother compared to those who are only brought up by one parent.

This report collates existing research into the benefits of shared parenting from other jurisdictions where there is already a framework in place, such as Sweden, Australia and the Netherlands.

It also includes information from 15 questionnaires and interviews with families in Scotland who have experienced shared parenting at first hand. One mother who shares parenting time equally with the children's father says:

“I think us being separated is fairer for the children and we are all so much happier. I also think it means the boys have good relationships with both parents, they love both of us and we both love them and we reinforce this everyday. I also have a really healthy life outside of the children so there is more balance for me and then for the kids as well. I have time for myself that I didn’t have before, or where I did have it before I would feel guilty for leaving them, but now I don’t have this. I’m also more resourced to commit to the parenting side of things when I am responsible.”

National Manager of FNF Scotland, Ian Maxwell, says, “We want children to have an equally significant relationship with both their mother and father and their respective extended families wherever possible. This means that the child will spend a considerable amount of time with each parent; that both parents will have equal weight in important decisions affecting the child and that both parents will be recognised equally by public agencies such as schools and doctors.

We believe a legislative commitment to the values of shared parenting would save the public purse in court time and legal aid funding (as well as the psychological drain on the parents and their children) of high octane disputes about controlling rather than sharing time. If the starting point for the parents is clear then the discussion becomes about practical arrangements.

Attitudes are already changing in Scotland as family life and economic realities have evolved in recent decades. This is part of the drive towards greater gender equality in Scotland. Parents should be able to collaborate in the interests of the children long after the sheriff has gone home and the solicitors have closed their files.”


As well as being sent to members of the Scottish Parliament,  the report is being highlighted at a side meeting of the Council of Europe in Strasbourg.  The meeting follows up last October's Council resolution calling on member states to better recognise and positively value the role of fathers and do various things to support shared parenting for the benefit of children.

The FNF Scotland report also calls for :
* the “contact and residence” labels under the existing legislation to be removed and replaced with less value loaded terms, as has been done in England and Wales with “child arrangement orders”
* that parental rights and responsibilities should be retrospectively allowed for unmarried fathers.  The arbitrary date of May 6th 2006 enacted in the Family Law (Scotland) Act 2006 is still creating anomalies within families and unnecessary discrimination between unmarried fathers and unmarried mothers
* that mediation should be encouraged in order to shift away from the current adversarial approach of raising disputes in court.