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Entries in summary sheriffs (3)


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.


Courts reform: culture change needed for family cases 

Families Need Fathers Scotland called for speedy and efficient administration of family cases, continuity of sheriffs/judges, and effective enforcement of court orders in our response to the recent Scottish Government consultation on the Courts Reform (Scotland) Bill.

The draft legislation covers a wide range of topics, as part of the major revamp of the civil courts. 

It proposes that a new "lower" tier of Summary Sheriffs are created, and asks specifically whether they should deal with family cases.

Our response indicated that "some of our members are concerned that ‘summary’ sheriffs may indicate a loss of status in family cases. That is a risk.  On balance we believe the new tier creates an opportunity to bring in a new generation to the bench and accelerate a culture change. We anticipate this may represent the first rung of a judicial career for experienced family law practitioners."

On the proposal to limit many cases to the Sheriff Court, we commented:

"A minority of our members have had experience of the Court of Session and they generally report a better experience than the larger number whose case has proceeded only in the sheriff courts."

"Our impression is that some of these cases might not have been so successful in some sheriff courts, especially where ‘new’ concepts such as shared parenting or parental alienation have been heard with respect and examined with care in the Court of Session but have been dismissed out of hand in some sheriff courts."

"Whichever Court hears the family cases, there is a need for sufficient training of sheriffs and judges in topics such as dispute resolution, domestic violence and its impact when experienced by both men and women, parental alienation, child protection, and the best procedures for consulting with children and ensuring continuity of contact."

"There is also a need for speedy and efficient administration of family cases, continuity of sheriffs/judges, and effective enforcement of court orders."


Consultation on civil court reform

Changes to the way civil courts work in Scotland have been announced at the start of a consultation period on proposed legislation

The proposals provide the legal framework for implementing the majority of recommendations of the Scottish Civil Courts Review, led by Lord Gill.

The proposals discuss a redistribution of business from the Court of Session to the sheriff courts, creating a new lower tier of judiciary in the sheriff court called the summary sheriffs with jurisdiction in certain civil cases and summary criminal cases.

Other proposed measures include the creation of a new national sheriff appeal court and a new national specialist personal injury court.

FNF Scotland welcomes views from members about these changes, and will respond to the consultation. Our response will include suggestions about the importance of identifying high-conflict cases at an early stage, the need for Sheriffs to have a clear understanding of how such cases can be resolved, and the need to avoid delay in re-establishing contact with children when cases reach court and for contact orders to be enforced effectively.