Review of Children (Scotland) Act 1995 consultation: analysis

11 Court Procedure

11.1.1 Three questions were included in the consultation that related to court procedure: the timing of cases, the type of court for Section 11 cases, and the factors relating to section 11 for the courts to consider.

11.2 Provision that Any Delay is Likely to Affect the Welfare of the Child

11.2.1 It has been noted in previous research that contact cases can take a long time to conclude, some taking as long as five years.  Because of this, the consultation sought views on whether there should be primary legislation within section 11 of the 1995 Act to require the court to avoid undue delay in family cases which may prejudice the welfare of the child.

Q39. Should the Scottish Government introduce a provision in primary legislation which specifies that any delay in a court case relating to the upbringing of a child is likely to affect the welfare of the child?

	Number	Percentage
Yes	136	54%
No	34	13%
No response	84	33%
Total	254	100%

11.2.2 Over half of all respondents (54%) agreed that the Scottish Government should make such provision in primary legislation, while 13% felt they should not.  The remaining 33% did not provide a response.

Need for Primary Legislation

11.2.3 The main reasons given for supporting the proposed legislation were that delay is not in the child’s best interests and that the longer a case continues, the more stress for the child and family, not least in terms of denying contact until the case is concluded:

“[Delay] can result in a parent having no contact with a child for a long period of time while a decision on contact is made…These cases should be given priority to ensure they are not drawn out to the detriment of the child.” (Individual)

“1 year… of lawyers letters going back and forward re contact for the child, up to 3 months waiting time to see if legal aid is granted… up to three years to gain at least 2 hours contact per week.” (Individual)

11.2.4 Several respondents perceived that such delay can be tactical, or even financially motivated, and tends to affect the absent parent most:

“[Delay] provides the ‘resident’ parent, the person in possession of the children, usually the mother, to establish a fait accompli - an established regime of the children hardly ever seeing the other parent.” (Individual)

“… the current system discriminates against the non-resident parent given that the length of time separated from children can then become a factor in contact cases.” (Individual)

11.2.5 However, several respondents suggested that delay was often inevitable or justifiable and that “delay is not necessarily a bad thing” (Individual). If delay was because of inefficiencies in the system itself, then a few suggested that additional resources would be needed:

“… any such statutory statement would need to be supported by appropriate resources. There is no point in a statutory statement to that effect, if there is no available court time, or the necessary reports cannot be produced in time.” (Individual)

11.2.6 In this regard, it was pointed out that the emphasis should be on ‘undue’ or ‘unnecessary’ delay, and that speeding up the process should not mean that ‘shortcuts’ undermine good practice.

11.2.7 Several organisations commented on the fact that such legislative provision would ‘focus minds’:

“Delays are inevitable, however legislation will help focus the court timescales and alleviate some of the time constraints and impact on children.” (Local Authority)

“Whilst… the introduction of [primary] legislation is not likely to have any practical impact, we do feel that it will help focus minds. It will also require the recording of clear evidential reasons for delays in cases, which currently does not exist.” (Local Authority)

11.2.8 It was also suggested by one individual that there should be a dedicated team within the court (of social workers, psychologists, mental health professionals, etc.) to provide information, assessments and interventions in a timely and time-limited way.  One children’s organisation also suggested extending a ‘welfare principle’ to all court proceedings relating to children and young people.

Primary Legislation Unnecessary

11.2.9 Of those who disagreed that primary legislation was needed, many highlighted the effect of delays on children’s welfare, and this was because either that the courts were already aware of the need to avoid delay in a child’s best interests and that it was unclear what further legislation would achieve:

“It is difficult to see what making such a statement in legislation would achieve. There can be few people involved in such cases who are unaware of the negative impact on children of unjustified delay. Nor would a bold statement do anything to address the causes of delay.” (Individual)

“Such rules as to speed of process… typically are honoured more in the breach than in the observance.” (Individual)

11.2.10 Other comments against the proposal included that delay is not necessarily a bad thing, and may indeed be in the child’s best interests.  It was suggested that cases are often ‘organic’ and can require time for resolution methods to be tried:

“… enable full investigation, bedding down of relationships, a trial period for contact, mediation or the like… there may on occasions be very good reasons for final resolution to take some time.” (Other Organisation)

11.2.11 Finally, a suggestion by one public body was that the currently ongoing SCJC consultation should be completed before any movement is made on this specific proposal, as that SCJC consultation “may be better placed to address the issue of delay effectively.”  (Public Body).

11.2.12 Of those respondents who did not answer the quantitative question, but gave a comment nonetheless, most were generally in favour of the proposal but with certain provisos. Several suggested that the key stakeholders were already aware of the ramifications of delay, and that better court resources and better case management would help reduce delay. However, one respondent suggested that guidance/practice directions, rather than legislation per se, would be able to highlight the links between undue delay and detrimental impacts on children and families.

11.3 Section 11 Cases Heard Exclusively by the Sheriff Court

11.3.1 Although not used in many PRR cases currently, provision is there for applications to be heard in the Court of Session rather than the Sheriff Court, but this can lead to additional costs and complications in respect of legal aid applications.

Q40. Should cases under section 11 of the 1995 Act be heard exclusively by the Sheriff Court?

	Number	Percentage
Yes	58	23%
No	81	32%
No response	115	45%
Total	254	100%

11.3.2 Around a third of respondents were against this proposal (32%), whilst 23% were in favour.  The remaining 45% did not provide a response.

11.3.3 Among those who were against the proposal, there was a strong belief that the current situation was satisfactory:

“There doesn’t appear to be a real issue here. If 99% of cases go through the Sheriff Court anyway, there would need to be compelling reason to ‘reduce’ access to justice by shutting off the Court of Session as a route for the remaining 1% who appear to need it.” (Individual)

11.3.4 The vast majority of comments in this regard related to the fact that the Court of Session was the more appropriate forum for certain, often complex and diverse, cases relating, for example, to divorce proceedings involving significant financial settlements:

“There are divorce cases running quite properly in the Court of Session where it would be contrary to the best interests of the child to have s.11 issues heard in a different court.” (Individual)

11.3.5 Indeed, it was pointed out by several respondents that the Court of Session can remit a case back to the Sheriff Court if necessary and appropriate, “ex proprio motu (under the Courts Reform (Scotland) Act 2014, section 93)” (Legal Profession).

11.3.6 However, several respondents who disagreed with the proposal suggested that there were flaws in the system currently which may make the Court of Session an attractive option for some litigants.  For example, a few respondents suggested the Court of Session was a speedier process and therefore any criticism of higher costs in that court may be unfounded, as one respondent noted:

“Costs are actually not that different in practice as Court of Session cases tend not to drag on.” (Local Authority)

11.3.7 Also, some noted that the Sheriff Court is not always family-oriented and that more specialist family courts or Sheriffs were needed:

“The Court of Session now has two specialist family judges, which means that family cases are being heard by judges with a particular knowledge of this topic as well as experience of conducting a wide variety of such cases.” (Family Support Organisation)

11.3.8 Finally, one public body highlighted the issue of legal aid in Courts of Session, where such an application “… would be refused as not meeting the reasonableness test given it could be dealt with at a lesser cost in the Sheriff Court” (Public Body).

11.3.9 Of those respondents who agreed with the proposal, several suggested that the Court of Session was too expensive and that having all cases heard in the Sheriff Court would not only reduce costs but also speed up the process. Several also commented that cases could be referred to the Court of Session if need be at a future date.  The main caveat, however, in having all cases heard in the Sheriff Court was that, despite being more ‘family-oriented’, professionals involved in the Sheriff Court would need to have an improved knowledge base about child development, engaging with children and young people, etc.  One respondent said that ideally there needed to be the consistency of one Sheriff dealing with a case throughout.

11.4 Checklist for Courts to Consider

11.4.1 The final question in this part of the consultation sought views on whether a ‘welfare checklist’ of factors relating to cases under section 11 should be created for consideration by the courts, factors including, for example, domestic abuse, criminal prosecutions/convictions or unreasonable parental influence of the child.

Q41. Should a checklist of factors for courts to consider when dealing with a case be added to section 11 of the 1995 Act?

	Number	Percentage
Yes	103	40%
No	50	20%
No response	101	40%
Total	255	100%

11.4.2 A checklist was considered a positive step by 40% of all respondents, while 20% felt this should not be implemented.  The remaining 40% did not provide a response.

Support for a Checklist

11.4.3 The main reasons given for supporting such a checklist was that it would ensure consistency of practice, ensure due regard has been paid to all the important factors of a case and/or any elements of risk, it would aid decision making, and it would be in keeping with the UNCRC General Comment No 14:

“… the UNCRC indicated support for the use of checklists, with the Committee indicating that it ‘considers it useful to draw up a non-exhaustive and non-hierarchical list of elements that could be included in a best-interests assessment by any decision-maker having to determine a child’s best interests’… CRC/C/GC/14 (2013), para 50).” (Individual)

11.4.4 A few individuals suggested that good examples of checklists could be found in the USA and in Northern Ireland (used in the Children’s Order), while others suggested that subsections 7A to 7E of S11 of the 1995 Act would be a good starting point for developing a checklist.  Suggestions for specific issues to be included on such a checklist included:

• Hearing the child’s voice and focusing on their best interests;
• Whether a children’s support worker should be assigned;
• Domestic abuse;
• Any relevant criminal convictions or prosecutions;
• Whether there are any substance misuse issues;
• Whether there is any evidence of one parent unreasonably trying to influence the child against another parent;
• Whether there is any evidence of coercive and/or aggressive behaviour in either party;
• Whether one party is unnecessarily delaying a case and does this contribute to alienation;
• Is contact safe, and are there any measures needed to ensure safety;
• Consideration of parents (and extended family’s) involvement/relationship with the child;
• Consideration of shared/equal parenting;
• Whether a Proof hearing is likely to be needed; and
• Characteristics of the child or either party, such as the child’s developmental stage, whether there are any additional support needs (ASNs), mental health issues, general health concerns, and educational needs.

11.4.5 It was also suggested by several individuals that such a checklist would allow allegations to be investigated and either substantiated or shown to be false.

11.4.6 The only provisos raised by several respondents was that any checklist needed to be non-hierarchical and non-exhaustive.  It was considered that cases would contain their own unique issues, and therefore parties/the court must be able to add or consider additional factors as appropriate:

“A checklist of factors would help the court, standardise practice and continuity of decision making... However, we need to be mindful that any checklist is flexible and non-exhaustive, allowing for other factors to be included and the ability to be more responsive to children and young people.” (Local Authority)

Reasons against a Checklist

11.4.7 Of those who were against the proposal, the most common reason was that having a checklist may both present unnecessary factors in an individual case and also potentially undermine the presence or validity of factors not listed in that checklist:

“Going through a checklist will require time to be spent on issues that are not relevant in an individual case. Having a checklist runs the risk of the specified factors being considered more important than other, unspecified, factors which may, in the particular circumstances, be crucial.” (Individual)

11.4.8 In this respect, one respondent again argued for the removal of subsections 7A-7E, to prevent an undue focus on any one factor, and several respondents commented that no list can be exhaustive and is thus open to criticism and review:

“The list could never be exhaustive but runs the risk of being seen as definitive.” (Local Authority)

“A welfare checklist will never be exhaustive/comprehensive; and any hierarchy of listing is controversial and unhelpful.  Inserting a welfare checklist would make the legislation more complex and lengthy, without strengthening the underlying principles. Checklists have a tendency to skew the welfare analysis, apparently prioritising some aspects of welfare over others, or risking the omission of certain considerations from the overall analysis.” (Individual)

11.4.9 Several respondents reiterated the fact that the child’s welfare is paramount and that the court should decide on which factors are important to consider in that regard, given the discretion of the Sheriff:

“Sheriffs experienced in dealing with family cases know what factors should be considered… Not all of the factors within a checklist are live issues in every case. The Sheriff or judge is obliged to provide a written decision explaining the factors which were taken into consideration and to explain why they were significant. There is no reason to depart from this approach.” (Other Organisation)

11.4.10 Some agreed with the consultation document that a checklist could result in a ‘tick-box exercise’ and could also create more disagreement between parties:

“Codifying a list of factors may lead to other relevant matters pertinent to the child’s welfare being overlooked [or] prompt technical dispute between parties if it appears that a particular issue has not been properly canvassed.” (Local Authority)

11.4.11 Several respondents suggested that more training and awareness-raising was needed amongst key stakeholders, and one respondent (who did not answer the quantitative question), suggested that current practice is inadequate if a checklist is being considered.