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Entries in mediation (5)


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.


Consensus alternative to messy separations

Businesses in Scotland are suffering as a result of divorce and separation. That’s the finding of a new piece of research released by Consensus Collaboration Scotland, a body of Scottish lawyers, family consultants and financial specialists offering couples a non-confrontational way of agreeing the legal and practical arrangements for their separation and divorce through supported discussions.
The research, commissioned by family law not-for-profit group Resolution to mark Family Dispute Resolution Week, reveals that the stress of separation also has an impact, with 15% saying they or one of their colleagues has had to take sick leave as a direct result of the anguish of a break up. 14% of people in Scotland said separation and divorce has had a negative impact on productivity where they work.
Yet, despite the effect it has on them or their colleagues, just 8% of people think their employers offer adequate support for people going through a break up, with 34% saying more needs to be done to provide support in the workplace for those undergoing separation or divorce.

FNF Scotland national manager Ian Maxwell says, "It is useful to get these survey results. Our primary concern is reducing conflict between the separating parents and building an effective relationship between children and both their parents."

"However, we are aware from the non-resident fathers who come to our groups that the support they get from their employer is often a deciding factor in the parenting time they can guarantee their children. Some employers are supportive. Others are indifferent or unhelpful."

"We support effective - and affordable - strategies that aim to reduce conflict and, if possible, keep cases out of court. There are too many examples where the issue is really about controlling and restricting the relationship between the children and their non-resident parent for reasons that have little to do with putting the children first."

Shared parenting legislation: lessons from Australia

Comment following publication of the Government response to the Family Justice Review included a Woman's Hour interview with Professor Lisa Young of Murdoch University in Perth Australia (1:04 - 9:44). 

She described how the 2006 Australian legislation, while retaining the best interests of the child as the main consideration, also introduced a process for judges to determine best interests, and a presumption that major decisions should be made jointly.

The Act says that you have to look at 50:50 care arrangements first, which has led to the wrong assumption that shared care must always be 50:50.

Professor Young commented that the compulsory mediation at Family Dispute Resolution Centres has led to a 22% reduction in cases going to court and can be counted as a very successful aspect of the Australian system. 

When asked what she would recommend from the Australian system, she emphasised properly funded mediation and clearly drafted legislation that avoided misunderstandings about the meaning of shared parenting.  In her view, successful shared parenting is not a function of amounts of time spent with each parent, it is the quality of that time that counts. 


Alex Salmond supports mediation

Speaking at the launch in Aberdeen of Avenue, the new name for Counselling and Family Mediation Grampian, First Minister Alex Salmond stressed the importance of mediation.

"In some cases, the difference between a relationship ending or being revived can come down to people’s ability to use counselling and support which is sympathetic, expert and impartial."

"And even when re-establishing a relationship isn’t the best option for the individuals concerned, mediation can help to turn separation from a bitter experience into a more bearable one."

"For children, too, having support in times of difficulty can make a massive difference to their happiness, development and wellbeing.

FNF Scotland National Manager Ian Maxwell commented: "Mediation can focus both parents on the need for co-operate for their children's benefit, and avoid the need for them to go to court.  We always advise the parents who come to us about contact problems to try mediation."
"At present if one parent refuses to take part, mediation can do nothing. We look forward to the implementation of the Gill proposals for civil justice.  They include a requirement in child contact cases that mediation be attempted, with a report to the Sheriff if one parent refuses to co-operate."


Will child maintenance reform work in Scotland?

East Edinburgh MP Sheila Gilmore received the usual brush off  answer to her parliamentary question about how child maintenance reforms are going to be implemented in Scotland.

She asked Work and Pensions Minister Maria Miller what discussions there has been with the Scottish Government Ministers on providing additional resources for mediation services in Scotland to support separating parents to reach voluntary arrangements for child maintenance should the provisions of the Welfare Reform Bill on child maintenance become law.

Her answer states: "The Government recognise that family support is a devolved matter and we are working closely with Scottish Government colleagues to look at implications for family support services in Scotland." and goes on to say that mediation isn't the only approach that they are exploring."

It's a very valid question, given that the original proposals paid no heed to circumstances in Scotland.  Whatever the quality of relations between Westminster and Holyrood, this is a crucial issue, and an answer like this strongly suggests that nothing at all is happening.