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Entries in family law reform (6)

Tuesday
Oct162018

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.

Tuesday
May152018

Review of Scottish family law launched

The Scottish Government has launched a public consultation on the Review of Part 1 of the Children (Scotland) Act 1995 and related matters.

FNF Scotland has been pressing for such a review to address the spectrum of issues that arise at our monthly meetings or are raised by individuals who get in contact. We will make our overall submission to the review settng out the direction we would like the reform of family law to take. 

In the coming weeks we will publish on this website our position on specific issues such as alternatives to the present adversarial basis of child contact/residence actions, alternatives to court, enforcement of orders and reliable approaches to securing the views of children involved.

The civil servants who are conducting the consultation will be coming to several FNF group meetings in the next few weeks to get insight into the personal, financial and relationship costs of the current approach to maintaining a meaningful parenting relationship for both parents after separation. We will also have a separate evening meeting in Glasgow on June 27th to discuss the consultation - use this link to book tickets.

FNF Scotland National Manager, Ian Maxwell, says, "We have been pressing the case for a comprehensive review for several years. The moment has come and we look forward to an overhaul of Scottish family law that will bring the legislation in line with life as it is lived in modern Scotland."

"We believe a rebuttable presumption of shared parenting after separation will help the individuals involved draw up arrangements that genuinely put the interests of their children first. There are too many incentives in the 'winner takes all' approach of the current system that promote character attacks on each parent by the other which damage relationships long after their court case is over and the sheriff has gone home. "

The consultation is available at the link below:
 
There is also a series of child friendly questions which are available at:
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."