Review of Children (Scotland) Act 1995 consultation: analysis

12 Alternatives to Court

12.1.1 This section of the consultation sought views on:

• Whether the Scottish Government should do more to encourage Alternative Dispute Resolution (ADR);
• Mediation and international child abduction cases; and
• Guidance for children and litigants.

12.2 Encouraging Alternative Dispute Resolution

12.2.1 The main consultation document outlined the main types of ADR approaches currently available for use in family law cases, including mediation, arbitration, collaborative law, family group conferencing and family group therapy.

Q42. Should the Scottish Government do more to encourage Alternative Dispute Resolution in family cases?

	Number	Percentage
Yes - introduce Mediation Information and Assessment Meetings in Scotland	104	41%
Yes - better signposting and guidance	88	35%
Yes - other	41	16%
No - no further action required	21	8%
No response	79	31%
Total Respondents	254*

* Note: Multiple responses were allowed at this question.

12.2.2 The most popular option was for the Scottish Government to introduce Mediation Information and Assessment Meetings (MIAMs), with 41% of all respondents in favour of this.  This was closely followed by better signposting and guidance (preferred by 35% of respondents), while 16% favoured other options and 31% gave no response.

Support for Encouraging ADR in Family Cases

12.2.3 It was generally felt that any steps that could be taken to encourage the use of ADR options and keep cases out of court was a good thing.  It was suggested that the use of ADR could provide a quicker, less intimidating process, which helped parents to focus on the needs of the child, reduce the need for solicitor input, and may also help to reduce costs.  It was also suggested by a few respondents that automatic/mandatory ADR may also help to reduce parental alienation after the break-down of a relationship: 

“Anything that lessens the "winner takes all" mentality of court proceedings can only help all of those involved.”  (Individual)

“Court should be a last resort wherever possible other avenues to resolution should be explored.”  (Family Support Organisation)

“Doing more to encourage ADR will mean that quicker, cheaper and less stressful options can be used as alternatives to court.”  (Local Authority)

12.2.4 In relation to mediation, any promotion of this was felt helpful.  One respondent suggested that many people still do not know what this is or understand what is involved.  Others felt that it would be helpful (and cost effective) for parties to have shown an attempt at mediation prior to attending court (subject to exclusions for domestic abuse).  Others still suggested that mediation should be made compulsory (with a few suggesting mediation required increased/more secure funding):  

“Mediation is a great way to help both parties understand and help towards their differences putting the adult disputes aside and try to do best for the child/children.”  (Individual)

“This could assist in preventing people becoming too entrenched in their position at an early stage and would hopefully result in less lengthy protracted court disputes.”  (Individual)

12.2.5 In relation to signposting, it was felt that it would be beneficial for multiple channels to be used in order to maximise awareness.  It was also highlighted that information would need to be made available in alternative and accessible formats, as well as via non-legal channels in order for it to be accessible to party litigants.  Those who favoured signposting over MIAMs generally did so because it was felt that mediation (or other forms of ADR) should not become compulsory:

“Make people aware of the options before going through court and then let them make an informed decision.”  (Individual)

“There will always be litigants for whom alternative dispute resolution is inappropriate.  Helping people choose what is right for them by way of signposting and guidance is preferable to compulsion.”  (Other Organisation)

Other Options

12.2.6 Three respondents suggested that non-court methods/initiatives (such as child/family tribunals) should be the primary way of resolving family cases.  Many others, however, suggested that family therapy, or Family Group Conferencing/Family Group Decision Making may be useful ADR options, while a few also suggested that collaborative law should be offered as an ADR option:

“There is little or no scientific evidence that family courts provide a net benefit to children and their families, while there is much evidence that they exacerbate conflict, stress and trauma and, albeit inadvertently, contribute significantly to harm to children.”  (Children’s Organisation)

12.2.7 A few respondents suggested that better education regarding the harmful effects of parental conflict and the benefits of ADR was required (including for both parties and solicitors), as well as promotion of all forms of ADR (not just mediation).  It was also suggested that legal aid funding needed to cover the full range of ADR options.  Two respondents also suggested there should be automatic/presumption of 50/50 custody.

12.2.8 Other options (suggested by one respondent each) included:

• Introducing a Parenting Co-ordinator pilot scheme;
• Introducing a Family Dispute Resolution pilot;
• Risk assessments forming part of the package of measures;
• Psychological testing/treatment for parents exhibiting signs of mental health issues;
• Limiting the need for the use of private solicitors by creating greater access to legal information for all, simplification of process, and clarity of outcomes;
• Preventing solicitors creating friction/animosity and a competitive scenario;
• That a central body should be identified with appropriate funding and training to enable the issues of contact and residence to be agreed and supported;
• Requirement for a Sheriff to give permission for a case to proceed to court based on evidence that this is in the child’s best interests; and
• Providing information and guidance to those going through divorce, and simplifying the divorce process.

12.2.9 It was suggested that legal aid funding may not be the best method for ensuring access to MIAMs as this would likely fall under the limitations of the Advice and Assistance system, resulting in ‘haphazard’ funding arrangements within cases.  Rather, it was suggested that MIAMs would be better funded by the Scottish Government either directly or via the creation of a central body set up for the purpose of co-ordinating and meeting the costs of such sessions across Scotland.

Reasons for a Lack of Support/Caveats to Support

12.2.10 Many respondents highlighted that mediation (although a few discussed this with more general reference to ADR) would not always be appropriate in every case, and was not appropriate for cases where one party had learning disabilities or where there had been domestic abuse.  It was felt that ADR and mediation would allow the perpetrator of domestic abuse to continue to exert control/power, manipulate the situation, and continue to intimidate/abuse the victim (although two family support organisations suggested that mediation could be adapted to accommodate cases involving domestic abuse).  It was also highlighted that mediation would only work where both parties were prepared to engage, and were equal parties in terms of being able to advocate for themselves and negotiate. It was felt that compulsory mediation/MIAMs (or other ADR options) should be avoided:

“This has to be on a case-by-case basis; for mediation to work you have to have two willing, honest and reasonable parents committed to working it out.”  (Individual)

12.2.11 It was also suggested by some respondents that there was a need for consequences for those who do not engage appropriately in mediation, while several also felt that mediation required greater powers so that any recommendations are adhered to: 

“Mediation needs consequences if not followed or time is wasted at meetings. The mediator should be able to report back to the court. The current system in place is not working and toothless.”  (Individual)

“Mediation is by far the best way to make parents understand what is best for a child. It should also have the power to enforce the agreements and decisions made.”  (Individual)

12.2.12 It was also suggested by a few respondents that there are currently not sufficient avenues for views of children and young people to be considered/involved in ADR processes, and that this needed to be addressed (although one family support organisation suggested that opportunities are available in the mediation process):

“In the context of child law, I think there is also a very significant concern as to the role which children can or do play in ADR and any moves to increase its use must address that concern.”  (Individual)

12.2.13 Finally, several respondents suggested that the current arrangements worked well, and that opportunities already existed for parties to try mediation and other ADR approaches.      

12.3 Confidentiality of Mediation and Cross Border Abduction of Children

12.3.1 The main consultation document also sought views as to whether the Scottish Government should make regulations to clarify that confidentiality of mediation extends to cases involving cross border abduction of children.  It was proposed that the regulations would clarify that mediation in such cases would benefit from the same level of confidentiality as mediation in other types of family cases.

Q43. Should Scottish Government make regulations to clarify that confidentiality of mediation extends to cases involving cross border abduction of children?

	Number	Percentage
Yes	99	39%
No	30	12%
No response	125	49%
Total	254	100%

12.3.2 Overall, 39% of respondents agreed that such clarification should be made, while 12% said it should not.  Nearly half (49%) of all respondents did not provide a response.  Of those who were non-supportive, only four were organisations.

Support for Clarifying Regulations

12.3.3 Both individuals and organisations who supported the proposal generally considered it important to stress that anything discussed in mediation should remain confidential, and therefore the regulations should extend to cross border abduction to ensure that loop-holes cannot be found to breach confidentiality:

“All forms of mediation should be confidential therefore this should extend to cases involving cross border abduction of children.”  (Individual)

“Confidentiality is a core tenet of mediation and should extend to any and all uses of the process.”  (Local Authority)

“Confidentiality is a cornerstone of mediation and we would welcome the Scottish Government clarifying that it extends to cross border cases and that nothing discussed or disclosed within the mediation process can be referred to in legal proceedings.  The only time confidentiality should be waived is where the law imposes an overriding obligation of disclosure, including reporting a child in need of protection, or when the information discloses an actual or potential threat to human life or safety.”  (Family Support Organisation)

12.3.4 A few individuals also suggested that anything which could provide clarity would be welcomed.  In addition, several organisations felt that clarity was required as a result of M v M 2015 SLT 682 and the case of FJM Petitioner (2015) CSOH 130 where it was determined that confidentiality provisions did not apply in cases of child abduction.  It was felt this now meant that the situation was unclear/confused and that the proposed regulations could provide certainty:

“To avoid a situation similar to what happened in M v M 2015 SLT 682 we consider that the Scottish Government should make regulations as proposed.”  (Legal Profession)    

12.3.5 Several respondents (both individuals and organisations) suggested that it would be necessary to ensure that any regulations take account of the Hague Conference Guide to Good Practice mediation and child abduction and is consistent with European Directive 2008/52/EC Art 7a.

12.3.6 There appeared to be some confusion over the interpretation of this question among some individuals, and while they indicated they supported the proposal they gave reasons which suggested they did not believe that confidentiality should be provided where there was a threat/execution of child abduction.

Reasons for Non-Support

12.3.7 It was felt that cases where there was a threat/execution of abduction should result in full disclosure, and the matter should be brought to the attention of the court.  A few also felt that information from mediation more generally should be shared with the court (with participants’ permission) so that the court has all the information with which to make decisions.  Importantly, others disagreed as it was felt that general disclosure would deter parties from engaging:

“Confidentiality should be over-ruled when the safety of a child is in question.”  (Individual)

12.3.8 One respondent also suggested that Directive 2008/52/EC of the European Parliament, Article 7 allows for the disclosure of information shared in mediation when required to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person.

12.3.9 The nature of cross border abductions were also considered significant as this would involve the rules of more than one legal system.  Questions as to governing law would prevail, thus making the regulations difficult to enforce.  Another respondent suggested that this regulation was unnecessary as mediators would already clarify confidentiality of the process, which could be reinforced by solicitors and the court.

12.4 Guidance for Litigants and Children

12.4.1 The main consultation document also sought views on whether further guidance for children and litigants in relation to family cases should be produced and published.

Q44. Should Scottish Government produce guidance for litigants and children in relation to contact and residence?

	Number	Percentage
Yes	152	60%
No	13	5%
No response	89	35%
Total	254	100%

12.4.2 Most respondents (60%) agreed that additional guidance should be produced, while only 5% felt this was not necessary.  The remaining 35% did not provide a response.  Of those who were unsupportive of additional guidance, only two were organisations, both from the legal profession.

Reasons for Support

12.4.3 It was felt that information and guidance in general was positive and helpful, and that information for party litigants and children in particular would be welcomed:

“Any guidance provided for litigants and children in contact and residence cases would be useful. Many people go through the legal system with little or no knowledge of what to expect…”  (Individual)

“We agree that such guidance could improve litigants’ and children’s experience of the court process. Further guidance might also be helpful to party litigants.”  (Legal Profession)

12.4.4 Several organisations suggested that information for potential litigants, while outlining the court process (and perhaps the downsides of litigation), should also include information about ADR options.  It was also suggested by both individuals and organisations that information for children needed to promote their rights and outline the ways in which they can contribute their views:

“Clear, child friendly guidance in mediums best suited to children and young people, is critical, not only to help alleviate fears about process but to help facilitate children’s engagement with giving their views.”  (Children’s Organisation)

12.4.5 It was suggested by several respondents that there appears to be a general lack of understanding among both litigants and children regarding the court process, and therefore the provision of clear, standardised information would be beneficial.  A few also felt that clear guidance around the court process may also lead to fewer cases going to court:

“The evidence that we have suggests that there is a huge amount of misinformation amongst members of the public regarding the law in relation to contact and residence. Given this, it would seem entirely appropriate for the government to produce understandable guidance to seek to correct misapprehensions and clarify the legal regime.”  (Individual)

12.4.6 It was suggested, however, that such information and guidance would need to avoid using legal jargon, be tailored to a range of different adult and child audiences (taking account of their age, different developmental stages and communication needs), be available in a range of languages and alternative/accessible formats, and would need to be maintained and updated regularly.  Indeed, in relation to information for children, several organisations suggested that utilising co-design and co-production approaches with children and young people would help to ensure it reflected the needs and views of those who would use it.  Suitable avenues suggested for the provision of such information included from solicitors, Citizen's Advice, government websites and other online sources, local authority buildings (e.g. libraries) and community centres, and for information to be included with the initial Writ sent to parties when court action is raised:

“This should be free, accessible and available in various formats so that people of all ages, abilities and geographic locations can have equal access.”  (Children’s Organisation)

12.4.7 It was also highlighted that the information would need to outline a range of scenarios and lived experiences rather than implying that contact with both parents is always in the child’s best interests.  The range of protections that can be implemented for domestic abuse victims throughout the court process should also be outlined, it was suggested. 

Reasons for a Lack of Support

12.4.8 Mixed reasons were given for not supporting the provision of additional guidance.  Some felt that there was a risk this could be seen as an alternative to legal advice, and so a disclaimer to state that this was not the case would be required.  A few also felt that the guidance would be unhelpful as it would likely reinforce the message that litigation was difficult, but for many in this situation it was considered to be the only avenue left open to them:

“I do not think that more information on how litigation is bad would be helpful in the situation. This is already the message that is out there, and it is often very discouraging for those that seek a meaningful relationship with their children and who cannot pursue this through mediation.”  (Individual)

“Every situation is different. Guidance risks being so general that it does not address the issues, or misleading because it does not apply in the circumstances of the case. There is no substitute for proper advice relating to the individual case.”  (Legal Profession)

12.4.9 It was also considered by a few respondents that sufficient information already exists across a range of different platforms, and therefore, producing more was not cost effective and indeed the resources could be better utilised elsewhere.

12.5 Young People’s Views on Information for Children

12.5.1 The young persons’ survey also asked respondents to consider whether the Scottish Government should provide information to children and, if so, what information would be helpful and how it should be provided.

YP11. Should we give information to children on what it is like to go to court about who they live with or have contact with?

	Number	Percentage
Yes	160	54%
No	9	3%
Don’t know	30	10%
No response	96	33%
Total	295	100%

12.5.2 Over half (54%) of the respondents to the young persons’ survey agreed that information should be given to children on what it is like to go to court about who they live with or have contact with, while only 3% disagreed.  A further 10% said they did not know, and 33% did not provide a response.

YP12. What information should we give?

12.5.3 Young people were also asked what information should be given.  It should be noted, however, that there appeared to be some confusion around the meaning of these questions; respondents were either unsure if this meant when the case in general went to court or if the child themselves had to attend court, while others responded from one perspective or the other.

12.5.4 Some suggested that only basic information should be given while others felt that it was better to provide as much information as possible.  Some also felt that information should only be given to those children who have to attend court/speak to the judge, while others felt it important that all children were given some information so that they could understand the situation/what was happening.

12.5.5 Generally, respondents felt it was important to inform children about what happens at court, and what will be expected of them (if they need to appear).  Specific information that was considered to be important included:

• What a Sheriff is and what they do;
• Why things like this happen and how to cope with it;
• What the court building/room will be like;
• Job description of every adult involved;
• Outline the different stages of the process and their level of involvement at each stage;
• What the court experience is like and how to deal with this;
• Who will be there;
• Who will speak (in general and specifically who will the child speak with);
• The types of questions they might be asked;
• Will anyone neutral/court appointed help them work out what they want to say;
• What will happen and/or be talked about and why;
• What is expected of the child;
• What times have they to be there;
• How long the process takes;
• Who they can speak to if they are scared/unsure of anything;
• The child’s rights;
• How to think about what’s best for them in the long run;
• Not to be fearful that parents might punish them for what they say;
• What will happen immediately afterwards;
• How decisions are made;
• What the possible outcomes might be and how this will affect them;
• What support will be available and what to do/who to speak with if they don’t agree with the outcome; and
• Who to speak to if they are being abused (including emotionally), and definitions of abuse.

12.5.6 Several also indicated that children should be provided with information upon the outcome of the case to help them understand the verdict and why this decision has been reached.

YP13. How should the information be made available?

	Number	Percentage
Online	40	14%
Booklet to be given to children	87	29%
App	30	10%
Comic	27	9%
No response	111	38%
Total	295	100%

12.5.7 Young people were also asked about their preferences regarding how such information should be made available.  A booklet was the most popular option, preferred by 29% of respondents, while 14% thought the information should be available online, 10% thought via an app, and 9% preferred a comic.  The remaining 38% of respondents did not provide a response.

12.5.8 Some respondents indicated that they would prefer a mix of sources to be available to meet the range of preferences and stages of development for children.  Others also suggested that some form of school based resource should be available, with suggestions including lessons, talks or workshops, computer based education games, posters and booklets.  Other suggestions included:

• Audio booklets;
• Video or interactive games whereby a child can see the setup of a court and judges, and where they will be, which gives them opportunities to come up with questions and 'experience' it (virtually) beforehand;
• A key adult that follows a child through the process, knows the details of the case and can answer relevant questions; and
• A visit to the court (at a suitable time/date before the actual hearing).