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Entries in law reform (2)


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.”


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.