Commission and diligence in family actions works, Faculty argues

Leave well alone, is the response by the Faculty of Advocates to suggestions that the law needs to be changed in relation to the way commission and diligence is exercised in family actions in the civil courts.

Faculty has released its submission on a Scottish Government consultation that asked for views on the current law and practice. Ministers believe there is a potential issue over information that a child has shared confidentially with a support worker or psychologist being obtained through this procedure.

However, Faculty believes that there are sufficient protections in place, as the 2012 Supreme Court case of A (A Child) sets out how to apply the human rights considerations, which would be binding on the Scottish courts and was applied this year in the Court of Session in the case of WF. 

"There is an expectation of confidentiality between the child and the service provider, and the decision of the court, in carrying out the balancing exercise required, must have the interests of the child as its paramount consideration", Faculty states.

“We are of the view that the law in this area does not require to be changed… the practice and procedure generally works well, and there is no need for any changes in this area.”

Click here to view the response.