Keep it in the family

When Glasgow Sheriff Court set up the unique family court in 1999, Sheriff Graham Johnston welcomed the move, commenting that: “Almost every civilised system now has in place a system for resolving family problems which does not rely upon the old adversarial procedure. It is embarrassing when I speak to lawyers from Canada, the USA, Australia or New Zealand and I tell them that we do not have specialised family courts, we do not have specialised family judges”(Journal, January 2000, 32) Seven years later, the Glasgow family court is operating well and is deemed a success. However, across the rest of Scotland the sheriff courts continue to hear family law actions in the general civil court.

Many in the profession are calling for change. Rachael Kelsey, chair of the Family Law Association, which represents over 300 family law solicitors, has recently called for a review of the overall situation. She feels that “family law is not getting the attention it deserves under the current arrangements. Family cases need to be handled with a degree of sensitivity and speed that the system simply can’t offer at the moment”.

Suitable environment

Those who took part in the consultation process which preceded the enactment of the Family Law (Scotland) Act 2006 were asked for their views on how to improve the court experience for those involved in family law cases. The majority response was that family courts should be set up, with many specifically suggesting that the proceedings should be more informal, that a less adversarial approach should be taken by all involved, accessibility to the court process should be increased for parties and that the issue of undue delay should be tackled.

So how do they do it in Glasgow? Four Sheriffs, namely Sheriffs Raeburn, Bowman, Totten and Platt, make up the “family team”, hearing all the family cases. The family court’s mission statement is to “create and maintain an environment in which identification, discussion and review of the issues of concern is facilitated”. A key feature of the court is the less adversarial approach which has been cultivated on the basis that resolution of these cases is best sought by negotiation, discussion and a sympathetic and conciliatory approach by the bench. The family court is well known in the west for taking a “hands on” approach, with the sheriffs being fully immersed in all aspects of the cases. The approach is very much one of dispute resolution by negotiation, without the confrontational elements of the traditional court model.

In Glasgow, the same sheriff will hear the case from start to finish, unless the situation is one of urgency, for example the need to deal with an interim interdict. Furthermore, the sheriff is available to deal with problems which may arise even after apparent resolution. Procedural matters in family actions are also held in a dedicated court, to ensure these cases are dealt with separately and efficiently. My counterparts in Glasgow have spoken highly of the family court system, within which they now present all their cases. They feel that they have got to know the sheriffs better, that their clients find the system less intimidating and more accessible and that delay, whilst not unheard of, is unusual.

Issues beneath the surface

Elsewhere in Scotland, however, there are problematic issues which continue to present difficulties for everyone involved in family law actions – the parties, family law practitioners and other professionals who are required to work within the system’s framework. The speed of the court system is something which I would identify as a real problem. All too often a sensitive case raising issues of great importance to the parties cannot be heard due to the lack of free court dates. The people involved may then have to wait several months, or sometimes years, for the resolution of a case which may represent the most stressful experience of their life. I have found that sheriffs often do try extremely hard to be accommodating and have the case assigned priority, but sometimes this is simply not possible. As their solicitor, I find it very difficult to have to explain to my client that there is simply a lack of court space and they will just have to wait.

This is particularly the case when children are involved and are of the age where they are aware of the ongoing nature of the court case. I had a case recently where a four or five day proof was required for a matter involving the residence of a child. Dates were not available until February 2007, almost six months away. Some sheriffs will be flexible in their approach, for example allowing an options hearing to be taken out of the court timetable, for speed. However, this is unfortunately not always the case.

Clearly, family cases can be extremely sensitive by their very nature and can encompass a wide range of emotive issues, such as contact and residence of the parties’ children, domestic abuse, sexual abuse, child abduction, neglect, adultery and adoption. In many cases if you dig a little deeper, you will find that there are often underlying issues affecting one or more of the parties involved, such as drug or alcohol addiction, anger management and complex issues stemming from the breakdown of the parties’ marriage or relationship. These are issues which inevitably require some amount of sensitivity and perception to deal with. There is certainly a strong argument for the sheriffs who hear family law actions to be specialised in this area and to have the additional “softer” skills needed to hear these cases.

Of course, there is a more general debate pertinent to this issue, namely whether having specialised sheriffs is appropriate or desirable. Some sheriffs strongly believe that their job is to be able to judge all cases of whatever nature and that specialisation will erode their role. Yet there does appear to be increasing support for the argument that specialisation would simply mean a better service being offered to litigants who have to enter the court process. There are of course the practicalities to consider of having specialist sheriffs in the smaller courts, although floating sheriffs specialising in family law could perhaps answer that concern.

Continuity the key

The principle of continuity is also an issue which is clearly worth considering. In my experience, where the sheriff holds onto the case from start to finish, it is beneficial for all involved. The sheriff is completely familiar with the case, the key issues involved and also (and sometimes most importantly) the underlying dynamics. Some cases can be particularly delicate, and having the same sheriff deal with matters throughout means that the background and past events do not require to be repeated to quite the same degree, if at all. I had a case recently in which the background information concerning one of the parties’ alcoholism and involvement in prostitution had to be repeated several times in front of various different sheriffs. It was clearly a distressing experience for the person involved and simply would not have happened if the same sheriff had been hearing the case from the outset. Having the same sheriff throughout would also allow parties at least the small certainty of knowing who the person behind the bench will be when they come to court – an experience which is at best stressful, at worst traumatic. In Edinburgh, as per Sheriff Macphail’s practice note of 2004, in cases relating to adoption, parental rights and responsibilities and related issues, the same sheriff hears the case from start to finish, which works successfully in practice. In a recent freeing for adoption proof I acted in, the sheriff’s detailed understanding of the case and voluminous paperwork was clear and a great asset to the case as a whole.

Call to action

Another difficulty is that in many sheriff courts, procedural parts of family actions are heard in amongst other general business. At Edinburgh Sheriff Court, procedural matters relating to family actions are often heard in the busy ordinary civil court. I recently saw a parent whose children were in care, and who was challenging the fact that the social work department was making plans for his child’s adoption, having part of his case heard in amongst petitions for sequestration and road traffic accident actions, with a packed courtroom listening intently. There seems to be no clear reason as to why a family court similar to the Glasgow family court could not be set up in Edinburgh.

In terms of future developments, the Scottish Executive Justice Department does seem to acknowledge the concerns outlined above. It stated: “We believe that this is a matter which could be considered in the context of a wider judicially led review of civil court processes.” Indeed, the Scottish Ministers are currently in discussions with senior members of the judiciary about such a review and the idea of a family law circuit system, whereby a team of experienced sheriffs and judges would tour Scotland to hear family law cases.

To date, however there has been no indication of whether such a review will definitely take place and how long it would be expected to take. Those who were involved in the consultation process in respect of the new legislation will be aware that change does not happen rapidly and that in order for it to happen, input is needed from all those involved in the system.

Jenny Nobbs is an assistant with the family law team at Lindsays, Edinburgh