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Entries in submissions (1)

Monday
Mar172014

Family courts could be more inquisitorial

FNF Scotland has submitted a response to the Scottish Parliament Justice Committee, commenting on the Courts Reform (Scotland) Bill.

It expresses the hope that this implementation of some of the key points of the Civil Justice Review will lead to Family Court hearings in Scottish courts, with the new Summary Sheriffs trained and equipped to provide a faster and more specialised service.

We note in the submission that earlier this month Lord Thomas, Lord Chief Justice in England and Wales, said in a speech to Justice that an inquisitorial approach may be a better way of conducting family cases.

He was speaking with particular reference to the reported increase in the number of Litigants in Person in family cases south of the border but our experience is that as a general approach it has much to recommend it.

Proceedings and procedures in the family courts are in their origin the same as other forms of litigation such as personal injury or debt where the aim of going to court is to produce a clear result, a winner and a loser. This does not seem appropriate for settling most disputes about contact and residence after separation.

Courts cannot order parents to like each other but neither can they be blind to the consequences of the narrative unfolding before them that allows and sometimes encourages parents to attack each other’s character and history in order to seek short term advantage over each other at the expense of the long term contribution they (and their extended families) might both make to the benefit of their children.

Lord Thomas went on to acknowledge that some lawyers would see it as a "process alien to our adversarial tradition" and that research would have to consider whether an inquisitorial procedure would require more judges or a "new cadre of junior judges". That sounds remarkably like the proposal for summary sheriffs in the Courts Reform (Scotland) Bill.

It may be that such a change to the prevailing adversarial philosophy may need to be incorporated into the Bill or its accompanying Guidance.