Family Justice Modernisation Strategy

Part 6: Court procedure Background

6.1 The consultation on the review of the 1995 Act sought views on a number of topics in relation to court procedure including:

• amendments to the law in relation to commission and diligence;
• the impact of delay in a court case on the welfare of the child;
• factors for the court to consider when deciding whether to make an order about a child, and if so, what order to make; and
• guidance for adults and children on attending court.

6.2 The Family Law Committee (FLC) is currently undertaking work in relation to case management in family court cases. This work followed a policy paper by the Scottish Government^[33] and research carried out by the FLC.^[34] The FLC have established a subcommittee and consulted in 2018 on recommendations.^[35]

6.3 At the meeting of the FLC on 8 July 2019 the FLC considered and provided views on the outline of the proposed new rules^[36] and agreed a number of points including that:

• an Initial Case Management Hearing will replace the Options hearing;
• the timing of hearings including a Full Case Management Hearing will be set out in court rules;
• the rules will allow for a further Full Case Management Hearing where necessary, to be fixed for no more than 6 months later;
• the sheriff will still have the option to send cases to proof (a hearing at which evidence is heard) at an early stage;
• there will be a checklist of matters to be considered at both the Initial Case Management Hearing and the Full Case Management Hearing;
• sists (pausing a case) will be for a finite period of time. Where the court grants a sist, it will have to say why the case is being sisted and allocate a hearing to be held after the sist ends; and
• one of the points which should be considered at an early stage of court proceedings is whether the case may be suitable for another form of dispute resolution.

Commission and diligence

6.5. Local authorities and other organisations – including the NHS and voluntary sector bodies – may provide confidential services to children. Information provided in confidence can, in theory, be ordered to be produced as evidence in a civil court case.

6.6. When the court is deciding whether to disclose confidential information the child’s interest in privacy must be balanced with other interests. This can include the welfare of other children. The competing interests of the different parties are protected by the ECHR, in the form of protections for the right to respect for private and family life (Article 8), the right to a fair trial (Article 6) and the right to freedom from inhuman and degrading treatment (Article 3).

The impact of delay in a court case on the welfare of the child

6.7 Research published by Scottish Government in 2010 shows that there was considerable variation in the length of contact cases examined. 71 of the 182 cases that were examined were still active after 18 months, but only 42 of those had been heard in court within the preceding six months.^[37] In addition, at stakeholder events as part of the consultation on review of the 1995 Act the Scottish Government heard of cases taking a significant length of time.

Factors for the court to consider

6.8 The Scottish Law Commission Report in 1992^[38] on Family Law noted that the Children Act 1989 introduced a checklist of factors.

6.9 Paragraphs 50 and 51 of General Comment 14 of the UNCRC state that:

“50. The Committee 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. The non- exhaustive nature of the elements in the list implies that it is possible to go beyond those and consider other factors relevant in the specific circumstances of the individual child or group of children. All the elements of the list must be taken into consideration and balanced in light of each situation. The list should provide concrete guidance, yet flexibility.

51. Drawing up such a list of elements would provide guidance for the State or decision maker in regulating specific areas affecting children, such as family, adoption and juvenile justice laws, and if necessary, other elements deemed appropriate in accordance with its legal tradition may be added. The Committee would like to point out that, when adding elements to the list, the ultimate purpose of the child's best interests should be to ensure the full and effective enjoyment of the rights recognized in the Convention and the holistic development of the child. Consequently, elements that are contrary to the rights enshrined in the Convention or that would have an effect contrary to the rights under the Convention cannot be considered as valid in assessing what is best for a child or children.”^[39]

6.10 General Comment 14 goes on to say that the Committee considers that the following elements should be taken into account when assessing and determining the child’s best interests:

• the child’s views;
• the child’s identity;
• preservation of the family environment and maintaining relations. This includes an assessment and determination of the child’s best interests in the context of potential separation of a child from their parents. The Committee suggest that separation should only occur as a last resort when the child is in danger of experiencing imminent harm;
• care protection and safety of the child. This includes the child’s right to protection from all forms of physical or mental violence, injury or abuse;
• situation of vulnerability; and
• the child’s right to health and education. Guidance for adults and children on attending court

6.11 As noted in the consultation the Scottish Government is aware that there is already some guidance available on court procedure. However, there was strong support from consultation respondents for the Scottish Government to produce guidance for adults and children on attending court.

6.12 Respondents suggested that the guidance could cover:

• what it is like to go to court;
• alternatives to court; and
• how the views of the child can be expressed in court proceedings.

Aim

Commission and diligence

6.13 There may be cases where the disclosure of information is not in the best interests of the child concerned. The Scottish Government’s aim is to clarify that the best interests of the child should be a primary consideration in cases under section 11 of the 1995 Act when considering disclosing confidential documents. The Scottish Government recognises that the rights of other persons, which may be protected in law by the ECHR, are also important to consider.

The impact of delay in a court case on the welfare of the child

6.14 The Scottish Government considers that delay in court proceedings under section 11 of the 1995 Act, Children’s Hearings proceedings or adoption cases will usually not be in the best interests of the child. Lengthy court proceedings can lead to a significant period of uncertainty for a child which may not be in the child’s best interests.

6.15 The Scottish Government appreciates that complex cases may not be resolved quickly in court and that the courts will have to continue to consider all factors when making a decision.

Factors for the court to consider

6.16 The Scottish Government considers that stipulating certain factors which must be taken into account when making an order under section 11(1) of the 1995 Act could further the best interests of the child as this could improve consistency in the matters which are taken into account.

Guidance for adults and children on attending court

6.17 The Scottish Government considers that it is important for parties to have clear and accessible information on the court procedure.

Actions

Amendments to the law in relation to commission and diligence

6.18 The Scottish Government intends to issue guidance to family law practitioners that reiterates that the best interests of the child should be a primary consideration in cases under section 11 of the 1995 Act when disclosing confidential documents.

The impact of delay in a court case on the welfare of the child

6.19 Section 21 of the Children (Scotland) Bill requires the court to have regard to any risk of prejudice to the child’s welfare that delay in proceedings would pose. This provision would apply in proceedings where the court is required to treat the child’s welfare as the paramount consideration, and would cover cases under section 11 of the 1995 Act, Children’s Hearings’ court proceedings, cases under section 16 of the 1995 Act and cases under section 14 of the Adoption and Children (Scotland) Act 2007.

Factors for the court to consider

6.20 The Bill includes factors such as:

• the effect that the order the court is deciding whether or not to make might have on the involvement of the child’s parents in bringing the child up; and
• the effect that the order might have on the child’s important relationships with other people.

Guidance for adults and children on attending court

6.21 The Scottish Government intends to issue guidance in 2020 on what it is like to go to court. We will produce a child friendly version for children who attend court

to take part in a case about them or to give views to a sheriff or judge. The guidance will also cover alternatives to court. The Scottish Government proposes to

work with key stakeholders when developing the guidance.

6.22 The Scottish Government will produce guidance for children about when their views are being sought in a family court case.

Proposed extension of simplified divorce and dissolution procedures

6.23 The Scottish Government will consult in due course on proposals to extend the simplified divorce and dissolution procedures to cases where the spouses or civil partners have agreed about the upbringing of any children of the family under 16 years of age. Currently, the simplified procedures cannot be used if there are children of the family under 16 years of age, even if the family are in agreement about the upbringing of those children.

Language used by courts

6.24 The Scottish Government intends to prepare a policy paper for the FLC on simplifying and clarifying the language used in family courts, including in interlocutors, to help litigants and children.