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Entries in legal aid (7)


SLAB streamlining could speed up action on contact

From June 2016 the Scottish Legal Aid Board (SLAB) have introduced changes which are intended to "streamline" various parts of the financial support they offer.  Three are of particular interest in relation to legal action to regain contact with children.

SLAB are amending their approach to granting special urgency cover in cases where contact had previously been operating satisfactorily but the parent with care suddenly ends this contact for, on the face of it, no good reason. 

In those situations SLAB will now grant special urgency cover to allow an immediate court action to be raised to reduce the possibility of various delays to resuming contact, such as the need for a child welfare report, the need for several child welfare hearings and the need to introduce supervised or supported contact. 

SLAB comments that: "Long delays are not beneficial to the child or children who were previously enjoying contact with their non-resident parent and it could cost the public purse more."

Where contact was not operating just before the request for special urgency cover is made SLAB will continue to view this as a matter that can wait until the legal aid application is decided.

The second change relates to the availability of funding for supervised and supported contact to advice and assistance. SLAB have been meeting the costs of supervised and supported contact under civil legal aid since 2012. Since then the number of requests for funding has increased steadily. 

SLAB comments that: "... we want to encourage parties to resolve contact disputes without going to court.  Reducing conflict in relationship breakdowns where there are children involved and offering less contentious ways of settling such disputes will benefit the children involved."

The third change is making funds available for family therapy. The courts are increasingly referring cases to family therapy as a possible means of resolving difficult family disputes.  It can be used to resolve the tensions between parties rather than increasing this tension through the court process. 

SLAB now views family therapy as a useful option to try to resolve disputes between parties without excessive intervention by the court.   Where a request for funding for family therapy is made they will require to be given information about the issues to be considered by the family therapist,  clarification on the likely cost of the therapy and its duration and details of the potential prospects for successfully undertaking therapy.  

The other streamlining changes include removing the need for separate legal aid applications for each child and changes to stage reporting. 

FNF Scotland welcomes these changes as we know that long delays can often make it more difficult to resume contact.  We agree that providing early support through therapy could be a lot more cost effective than a drawn-out adversarial court process and we know that although such services are not yet available throughout Scotland there is now a steady build up in provision.

We would be very interested to hear from parents and family lawyers about how these new procedures are working and welcome any other suggestions about how legal aid could be made more effective.


SLAB expects parents to seek agreement

The Scottish Legal Aid Board (SLAB) is now sending a letter to all applicants for legal aid in a contact/residence action.

While the letter is effectively reminding applicants (and their solicitor if they have one) of the existing regulations and their obligations to behave reasonably if they are to receive public funding for their case FNF Scotland is aware that SLAB is now looking at applications more closely than before.

SLAB is reminding applicants of their obligations including:

  • complying with all court orders made;
  • not seeking to have the case conducted unreasonably or extended unnecessarily;
  • ensuring that the welfare of the child or children is kept at the forefront of the minds of the parties; and
  • to keep SLAB informed of any changes in financial circumstances;

SLAB says the letter sets out, “in unambiguous terms, our expectations when getting public funding. We believe this will assist us in our handling of assisted persons where problems arise.

"It will also set out a clear basis for the termination of any grant of civil legal aid should someone fail to comply with any of these requirements.”

The letter also tells applicants that their solicitor or counsel has a duty to let SLAB know about any unreasonable behaviour on the applocant's part.

Regulation 24 of the Civil Legal Aid (Scotland) Regulations 2002 requires that an assisted person’s solicitor, or counsel, draws to SLAB's immediate attention any matter where it is believed that the assisted person is requiring his or her case to be conducted unreasonably so as to incur an unjustifiable expense to the Fund or is requiring unreasonably that the case be continued.

In many of the high cost cases where SLAB have undertaken monitoring work there have been issues of concern arising which they think should have formed the subject of an unprompted stage report.

SLAB has also seen Judgements where Sheriffs have commented on the poor behaviour of an assisted person.

FNF Scotland has raised in meetings with SLAB and in other forums the experiences of our members where interminable correspondence between solicitors about trivial matters that will never be raised in court has become an issue in itself.

We have expressed our concerns that this kind of attrition by correspondence polarises issues between separated parents; is often unduly and unjustifiably personal in nature about the parties; delays proceedings in the pretence of “negotiation”; and does not put the interests of the children first.


Courts getting tougher on enforcing contact?

One of the most common questions to FNF Scotland is:  "What happens when a contact order has repeatedly been broken?"

One recent case received press coverage because the mother had been a contestant on the TV programme The Apprentice.

Sheriff Fiona Tait at Perth Sheriff Court gave Sharon McAllister six months to comply with court orders in a child contact case or face additional fines and a six-month prison term.

Sheriff Tait said Ms McAllister's behaviour was "a particularly bad contempt of court.”

The court heard there had been a series of problems between Ms McAllister and her son’s father which meant she had not been able to maintain contact without incident.

Ms McAllister, who now lives in Hertfordshire, was ordered to return £20,000 to the Scottish Legal Aid Board.  She was found guilty of contempt after she defied court orders to hand her son over to his father on a number of occasions.

Sheriff Tait warned her that if she did it again she could face a prison term and deferred sentence for six months for good behaviour.

She told Ms McAllister: “The options are a custodial sentence, a financial penalty or for the court to defer matters.  I’m minded to defer sentence for six months for you to be of good behaviour and show you will obtemper to an order made by the court."

“The sentencing options will remain live to the court for that six-month period. What I want is no further repetition of your failure.”

The case had been called in court more than 30 times in the past four years with Ms McAllister receiving legal aid to defend the civil action brought by her former partner.

Her former partner said: “There were plenty of opportunities for us to get around the table. It’s almost like her pride gets in the way – she can’t possibly be seen to lose.”

This use of a deferred prison sentence isn't restricted to such high profile cases.  We have heard of at least one other recent example in south-west Scotland, and hope that all Sheriffs are prepared to uphold contact orders in this manner where necessary.  


Lord Reed calls for faster child welfare cases

Lord ReedSupreme Court judge Lord Reed has called for reform of court and legal aid procedures following the recent judgement in the "million pound" child contact case.

His comments appear in the Herald following the Supreme Court decisionin the appeal from the NJDB v JEB case, in which evidence was taken over 52 days in Stirling Sheriff Court.

Although this case is an extreme example of what can happen n the courts when things go really wrong, sheriff court cases concerning child contact, residence and parental rights and responsibilities can often be expensive and protracted.

These issues account for over 60% of the expenditure on civil legal aid in Scottish courts - nearly £20 million per year.  Families Need Fathers Scotland supports Lord Reed's call for speedier court cases.


Civil litigation funding consultation

Sheriff Principal Taylor has launched a consultation on the expenses and funding of civil litigation in Scotland.  A consultation paper has been published setting out options following his preliminary review

In a section in the consultation on cost shifting, the following comment is made: "As a general rule, there is no award of expenses in family actions involving children.  Concern has been expressed to this Review, however, that family actions consume a disproportionate amount of the legal aid budget." 

"Cases proceed at great length and at considerable cost.  It is said that family cases involving children would never be conducted in the same manner if the parties were at risk of having to pay some of the expenses.  At a time when the Scottish Government is required to make savings and the legal aid budget is under pressure, it has been suggested that it would be fairer if some of the funding presently allocated to family actions was directed to other types of litigation."

FNF Scotland will be submitting evidence to the consultation, and we plan to ask members and other who use our services about their experience in a forthcoming survey.  In the mean time, we would welcome any comments on this topic.

Responses are due by 16 March 2012 and the final recommendations are due to be published by the end of 2012.