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Entries in routine publication (1)

Monday
Apr042016

Publication of family court judgements

The selection of academics and campaigners who gave evidence to the recent Scottish Parliament Justice committee 'post legislative scrutiny' of the 2006 Scottish Family Law Act were agreed on at least one matter - urging that more judgments should be published on the Scottish Courts website.

The witnesses, including Families Need Fathers Scotland and Scottish Women's Aid, agreed that the present situation in which only a small proportion of the decisions made in family law cases are published and largely at the initiative of individual sheriffs inhibits the development of a corps of knowledge that would not only keep researchers, legislators and other judges informed of judicial thinking but also help members of the public get a sense of what they can expect from the courts. 
FNF Scotland reads the judgments in those family cases that are published to learn how the courts are handling crucial issues. There have been extremely interesting judgments recently.  
In one a sheriff set out detailed reasons for refusing a mother's application to relocate to the other end of the UK because it wouldn't be in the interests of the children and also comments robustly on the admissibility of expert evidence in such cases.
In another a Court of Session judge criticised council social workers for attempting to reduce a mother's contact to virtually nil "because, having settled upon permanency as being appropriate from as early as 2009, they shut their eyes to any other possibility, viewed any behaviour by M [the mother] which did not fit with their plans as hostile and not to be trusted and, by applying a somewhat twisted logic, treated that behaviour as proof of the correctness of their determination to proceed with their plans."
In a third a sheriff in Moray warned a mother that she "needs to examine her motives.  She needs to examine her attitude.  She needs to reflect on what is truly in the interests of the child. ..." in attempting to reduce the fathers contact to zero.
But we are aware these published judgments represent only an extremely small proportion and rather random sample of the many family cases heard in the sheriff courts each year.
Most of the family cases raised in court in any year - 13,600 in 2014-5 - are settled before the stage at which a judgment is issued (2014-15 civil justice statistics). 
The great majority of family cases are recorded as divorce or dissolution  However, the 2014-15 tables list 2,582 under Parental Rights and Respnsibilities including 1,281 actions for contact and 729 actions for residence raised in the Sheriff Courts. 
The statistics give only a limited picture. They under-estimate the total number of contact and residence issues  raised in the courts. This is because only the principal crave in any court action is counted.  If the principal crave, for example, is for divorce the 'ancillary' contact and residence issues are likely to be missed by the present system for capturing data.
The tables also give a breakdown of disposals dismissed, defended and undefended, and granted in favour of the pursuer but they can't distinguish which parent is the pursuer or the extent of the contact granted in the spectrum from equally shared care to supervised or indirect contact. The Scottish government statistics service has been working on improving 'data capture' with the Scottish Court Service.
Although not every judgement contains new circumstances or significant developments of judicial interpretation we feel that there is a public interest to be served in the publication of all the family judgements in the new Sheriff Appeal Court and a more systematic approach to identifying informative judgments from the sheriff courts rather than just those which are considered noteworthy by the sheriff or judge concerned.
The judgment is already issued to the parties. Of course the text would have to be anonymised to protect the interests of the children involved before it is uploaded to the Court Service web site. That doesn't seem a major additional burden.
In order to improve case management, we need more information on what is actually happening, so that sources of delay can be identified, and inconsistency in court practice across Scotland can be avoided.
Routine publication of judgements will help to provide this information. It would also be helpful to publish more comprehensive statistics on issues which relate to case management, such as the number of child welfare hearings per case, and the number of court days taken up in family proof hearings.