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Entries in lay representation (3)


‘Lay Assistant’ free training course to run in Edinburgh in November.

Families Need Fathers Scotland is recruiting for a ‘lay assistant’ free training course to run in Edinburgh in November.

As the number of party litigants appears to be increasing steadily in family law actions FNF Scotland has been aware of the importance of the support and steadying influence a lay assistant can have both in court and before court in keeping focus on the important issues at hand.

FNF Scotland National Manager, Ian Maxwell, says, “We ran a successful pilot course in Glasgow last month, introducing prospective lay assistant volunteers to the role they can play and the support they can give. We are clear that they’re not surrogate solicitors and aren’t there to give legal advice. But they are there to assist the party litigant - and the court - by taking notes of what is said during proceedings and keeping track of any documents that may be referred to during a child welfare hearing or, more crucially, during a proof.

There has been more use of lay assistants in other areas of civil litigation such as debt or housing but we have noticed the increased number of people who are opting to represent themselves in contact and residence cases. They do for a variety of reasons but the main one is that they find their earnings are just above the SLAB threshold but aren't enough to cope with legal fees that can quickly turn into thousands.”

Depending on demand the course will run over two sessions in mid November and includes presentations by FNF Scotland staff and family law solicitors, video simulations and role play. The training is free, funded by the Scottish Government's Volunteering Support Fund. Further courses will be run in Aberdeen and Stirling in early 2017.

Ian Maxwell says, “Our overall aim is a review of family law to reduce the adversarial nature of resolving arrangements for parenting of children after separation. We always advise negotiation or mediation rather than litigation. In the meantime we can’t ignore the rising number of party litigants and this training is aimed at helping them present their case as efficiently and effectively as possible in the interests not only of the court but in the interests of the children involved.

Anyone interest in signing up for the training should contact Alastair Williamson or ring 0131 557 2440.


A "no contact" order requires substantial justification

A recent Court of Session judgement has overturned Sheriff Court and Sheriff Principal decisions to stop a father's contact with his daughter, returning the case to a different Sheriff for reconsideration.

The Sheriff had stopped all contact following the breakdown in relationship between the parents.  Lawyers for the mother also argued the father had made various allegations to social workers and medical professionals that his daughter had been ill treated. They argued there was a risk that he would continue to make such allegations. 

Before the original Sheriff Court case, the father had enjoyed substantial contact with his three year old daughter, both before and after separation from the mother. He had cared for his child three days per week while the mother was at work.

In the appeal, it was successfully argued that refusing further contact was a substantial interference in family life.  Lord Eassie in the judgement agreed with the submission that: "where a decision is taken to interfere in an existing, and in practical terms significant, family relationship between a parent and the child by, in substance, bringing that relationship to an end a careful balancing exercise requires to be carried out and factors require to be identified which clearly make that step necessary and justified in the paramount interest of the child."

This balancing exercise had not been carried out in the original hearing.

The Judges also considered that: "the approach of the sheriff in requiring that the defender identify a “concrete example” of a “discernable benefit” from continuing contact (and in dismissing the defender’s explanation of the benefit of contact by doing normal “father and daughter things”) is an approach which in itself largely sets aside the intrinsic value of the child’s having a relationship with both parents.  Doing “normal father and daughter things” is simply a part of a normal relationship between a female child and her father."

They also stated "... the sheriff’s conclusion that there was a risk of future emotional harm from the repeated making of spurious complaints respecting the child’s welfare in the future proceeds on relatively slender foundations."

It was therefore considered "... this is a case in which as an appellate court we should conclude that the sheriff has gone plainly wrong".

This Inner House decision can be referred to in other cases where contact has been stopped, and we await with interest the affect it may have on future court decisions.  Because this father had been refused legal aid for his appeals, he had lay representation in the Court of Session by Ian Maxwell of Families Need Fathers Scotland, using arguments which had been prepared by his original solicitor Billy Finlayson.


FNF Scotland submits views on lay representation in court

Scottish courts should make it easier and simpler for people to represent themselves in family cases, and it should be possible for their non-legally qualified helpers (lay assistants) to speak up in court as well as offering whispered advice.

These points are made in a submission by Families Need fathers Scotland to a consultation on lay representation in the Court of Session and Sheriff Courts.  These views will be considered by a working group chaired by Lord Pentland.

In making the case for simpler and more permissive procedures, we suggest that various factors including the reduced availability of legal aid will lead to increased amounts of self representation in the Scottish Courts. 

The new rules should be consistent across all civil courts including any new courts arising from the implementation of the Gill review in coming years.

Our submission includes mention of how Mckenzie Friends operate in English and Welsh courts, where it is not unusual for them to be allowed to address the court, particularly when the person they are supporting is not confident or articulate.   

In support of this being allowed in Scotland, we mention the situation in which a parent has to be cross-examined, suggesting that it is preferable that this is done by someone other than his or her ex-partner if that person is representing themself.

FNF Scotland has already published a guide to representing yourself in the Scottish courts and are keen to hear experiences of party litigants.