Part 1 of the Children (Scotland) Act 1995: review

Part 10: Court Procedure

Introduction

10.01 We are seeking your views in this part on a number of topics in relation to court procedure. The specific areas are:

• Timing of cases;
• The type of court for hearing cases under section 11 of the 1995 Act; and
• A checklist of factors in section 11 for the courts to consider.

Timing of cases

Background

10.02 Research carried out by Scottish Government in 2010 ^[91] shows that there was considerable variation in the length of contact cases. 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. Most of the individuals that were surveyed for this research felt that their cases had gone on much longer than they had expected.

10.03 Data from SLAB shows that currently cases where parties received legal aid last the following length of time:

	Contact (%)	Residence (%)	Total (%)
Up to 6 months	15	21	17
6-12 months	24	30	26
12 – 18 months	17	17	17
18-24 months	13	10	12
2-3 years	17	12	15
3-4 years	7	5	7
4-5 years	4	2	3
Over 5 years	3	2	3

10.04 The SLAB data only covers those cases where individuals are granted Legal Aid. There is no information on cases which are privately funded. The figures cover the period from the date of the grant to the date of the final account. Therefore, the actual court time may be slightly less.

10.05 As noted in paragraph 9.22 of this consultation, the FLC established a sub-committee on case management in family actions and this sub-committee has produced a report. The SCJC intends to consult on the recommendations in this report.

10.06 In other jurisdictions including Australia and England and Wales, there are provisions in primary legislation on avoiding undue delay in family cases. In England and Wales, section 1(2) of the Children Act 1989 provides:

“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child”.

10.07 We are seeking your views on whether a similar provision to section 1(2) of the 1989 Act should be added to section 11 of the 1995 Act.

10.08 We also considered whether the 1995 Act could be amended to make provision in primary legislation laying down time limits for the courts when dealing with section 11 cases. However, we do not consider this to be appropriate. Cases under section 11 will vary in their nature and laying down time limits in primary legislation could not reflect their varied nature. In addition, it is not clear how time limits of this nature could be enforced.

Pros/Cons

10.09 The FLC considered at its meeting on 13 February 2017 whether or not court rules should be amended to include a provision about avoiding delay in family actions. The FLC agreed that the rules should not be amended to include a provision about avoiding delay ^[92] . However, one suggestion was made that any such provision should be included in primary legislation rather than rules. The argument for a provision of this nature in primary legislation is it would emphasise that undue delay is contrary to the welfare of the child.

10.10 It is widely accepted that undue delay in family cases can prejudice the welfare of the child. Undue delay may also expose children to more risk as the court has not ruled on the best interests of the child. Undue delay in court cases can also lead to increased stress for parties as it may lead to longer periods of uncertainty. Undue delay may also have cost implications for parties, for the legal aid budget and for the courts.

10.11 The arguments against are that any such provision may:

• Be unnecessary as the courts are already aware of the need to avoid undue delay in family actions; and
• Not have any practical effect.

Question 39): 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?
Yes
No
Why did you select your answer above?

Type of court for hearing cases under section 11 of the 1995 Act

Background

10.12 Currently, a person can choose to apply to either the Court of Session or the Sheriff Court for an order in relation to a child.

10.13 In practice, 99% of cases are heard in the first instance by the Sheriff Court. The Civil Justice Statistics in Scotland 2015/16 indicate that in 2015-16 there were only eight cases that were initiated in the Court of Session on parental responsibilities and rights ^[93] . The way in which these statistics are collated may underestimate the number of cases relating to PRRs in the Court of Session. However, overall numbers in the Court of Session will be low compared with the volume of cases in the Sheriff Court.

10.14 We are seeking views on whether the 1995 Act and the Courts Reform (Scotland) Act 2014 should be amended to provide that cases under section 11 of the 1995 Act should only be heard in the Sheriff Court.

Pros/Cons

10.15 The advantages of having section 11 cases heard in just the Sheriff Court could be:

• It seems odd that jurisdiction can rest in two types of court. This could lead to “forum shopping” (a person choosing to raise proceedings in one court rather than another); and
• There could be a reduction in costs. For example, a person may face higher costs if the action is heard in the Court of Session rather than in the Sheriff Court. We understand that if a request for legal aid for taking a case to the Court of Session is made to SLAB they may ask whether the case could be heard in the Sheriff Court.

10.16 However, arguments against any changes are:

• There may be complexities in an individual case which make the Court of Session the most appropriate forum for a case to be heard;
• An application for an order under section 11 of the 1995 Act may be part of a wider family action seeking, for example, divorce, financial provision on divorce and a civil protection order. If the Court of Session did not have jurisdiction in section 11 cases, this could adversely affect its ability to hear wider family actions; and
• This is not a major issue as the vast majority of these cases are already being dealt with in the Sheriff Court.

Question 40): Should cases under section 11 of the 1995 Act be heard exclusively by the Sheriff Court?
Yes
No
Why did you select your answer above?

Checklist of factors in section 11 for the courts to consider

Background

10.17 This consultation seeks your views on whether to establish a welfare checklist of factors for the courts to consider when dealing with a case under section 11.

10.18 Section 1(3) of the Children Act 1989 prescribes such a checklist in England and Wales. Any checklist for the courts in Scotland to consider could include a wide range of factors such as:

• Domestic abuse;
• Whether there are any relevant criminal convictions or prosecutions that the civil court should take into account; and
• Whether there is any evidence of one parent unreasonably trying to influence the child against another parent.

Pros/Cons

10.19 The arguments for a checklist are:

• It may make it more transparent to all what factors the court has to consider.
• It appears in line with Paragraph 50 of General Comment 14(2013) by the United Nations Committee on the Rights of the Children ^[94] .
• It could build on subsubsections (7A) to (7E) of section 11 of the 1995 Act. This provides a list of matters that a court shall have regard to when considering the welfare of a child; and
• It could take full account of domestic abuse.

10.20 The arguments against a checklist are:

• There could be considerable debate about exactly what should be included in any checklist;
• It could be argued that any checklist is unnecessary given that section 11(7)(a) of the 1995 Act already provides that when considering whether to make an order and what order to make the court has to regard the welfare of the child as its paramount consideration;
• It could be argued that any welfare checklist could detract from the key principle that the welfare of the child is paramount;
• A checklist could be seen as encouraging “a box-ticking approach” rather than encouraging assessment of all relevant factors; and
• As the United Nations Committee on the Rights of the Children said, any checklist could not be exhaustive: there could well be other factors to take account of.

Question 41): Should a checklist of factors for courts to consider when dealing with a case be added to section 11 of the 1995 Act?
Yes
No
Why did you select your answer above?
If you answered yes what should be in such a checklist?