Children (Scotland) Act 2020 - alternatives to court and funding of alternative dispute resolution pilots: report

Scheme for funding for ADR

7. Section 23 of the 2020 Act was commenced on 17 January 2021^[1].

8. The Scottish Ministers have not fulfilled their duty under section 23(1) of the 2020 Act to establish a scheme for funding for ADR. This is due to a number of reasons.

9. Firstly, the Coronavirus pandemic has led to a reprioritisation of non Covid19 related work.

10. Secondly, some time is required to consider the best way of establishing this assistance scheme. The Scottish Government has given initial consideration to two potential options but more work is needed and this will take time.

11. The first potential option would be to operate a scheme so that eligible individuals involved in a case under section 11 of the Children (Scotland) Act 1995 could claim assistance from a Scottish Government funded scheme. This scheme might not actually provide cash to the individuals but instead might give them an entitlement to ADR sessions. The Scottish Government could then fund providers of ADR so the sessions could then take place.

12. The second potential option would be to fund providers so ADR sessions could be provided and advise eligible individuals, through publicity on the Scottish Government website and elsewhere, that this has been done. (The Scottish Government does already provide funding to the Relationships Scotland network and part of that funding is for mediation and for couple counselling. Legal aid resources are also used to support mediation).

13. Before setting up the new assistance scheme, further thought will be required on:

• The two options outlined above and any further options (there may be better options than the two outlined above).
• What would happen if one of the parties wishes to go to ADR and the other does not.
• Any eligibility criteria to be applied to the individuals (section 23(3) and (4) of the 2020 Act refer).
• How best to ensure that assistance under the scheme is only available to meet the costs of ADR procedures which ensure regard is had to children's views to at least the same extent as a court would be required to have regard to them by section 11ZB of the 1995 Act (section 23(5) refers. This is particularly important as Scotland moves to incorporate the UN Convention on the Rights of the Child into Scots law).
• How best to ensure that domestic abuse victims are not forced to go to ADR.

14. In addition, there are a variety of forms of ADR which may be used in family cases. These include mediation, arbitration, collaborative law and family group conferencing. The Scottish Government will need to speak to the providers of the various forms of ADR on the proposed assistance scheme. The Scottish Government will also need to engage with the Scottish Courts and Tribunals Service on the practicalities of setting up an assistance scheme and to organisations such as Scottish Women's Aid and Shared Parenting Scotland who work with users of the family court system.

15. Thirdly, the Scottish Government will need to consider the implications of the planned assistance scheme for existing arrangements. Section 23 itself recognises the clear links with the legal aid system. A common criticism of the legal aid system is that it has been set up in an ad hoc way, reacting to changes in the law, but without proper systemic and strategic review. In setting up the new assistance scheme, the Scottish Government will wish to ensure it fits well with the legal aid system generally.

16. In addition, the Scottish Government has been undertaking a review of Mediation and wider Dispute Resolution. In setting up the new assistance scheme, the Scottish Government will wish to ensure it fits well with this review of Mediation and wider Dispute Resolution.

17. Finally, changes to court rules may be needed. As indicated above, whilst ADR can cover mediation, arbitration, collaborative law, family group conferencing and family group therapy, a sheriff can already order parties in a family action to attend mediation under Ordinary Cause Rule 33.22^[2]. There are similar provisions in Ordinary Cause Rules (rule 33A.22) for civil partnership actions and in rule 49.23 of the Court of Session Rules.

18. The Scottish Government has already submitted a paper to the Family Law Committee of the Scottish Civil Justice Council on extending Ordinary Cause Rule 33.22 and equivalent rules for civil partnership actions and Court of Session cases to all family actions as opposed to only cases under section 11 of the 1995 Act^[3]. This assistance scheme might require further changes to court rules and, if required, the Scottish Government would submit another paper to the Family Law Committee of the Scottish Civil Justice Council accordingly

19. Section 23(7) of the 2020 Act requires the Scottish Ministers to state when they expect to fulfil the duty to set up an assistance scheme. It is likely to take at least another two years. As indicated above, work on Covid-19 will need to take priority. On the assistance scheme itself, the Scottish Government will need to:

• Consider the options for establishing the scheme.
• Consider the eligibility criteria for assistance.
• Consider how to ensure the voice of the child is heard in ADR.
• Ensure that domestic abuse victims are not forced to go to ADR.
• Speak to the providers of the various forms of ADR on the proposed scheme.
• Speak to the Scottish Courts and Tribunals Service on the practicalities of setting up the scheme.
• Speak to bodies such as Scottish Women's Aid and Shared Parenting Scotland who work with users of the family court system.
• Consider how the new assistance scheme fits with the legal aid system.
• Consider how the new assistance scheme fits with a wider review of Mediation and Dispute Resolution.
• Consider if any regulations under section 23(9) of the 2020 Act would be required. (Under section 23(11) any such regulations are subject to the affirmative procedure).
• Consider if any changes to court rules need to be proposed.