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Child disputes: a quicker way through?

13 November 17

A sheriff's method of resolving an urgent specific issue matter concerning a child prompts this discussion of whether the use of affidavits would be beneficial in child related disputes more generally

by Amanda Masson

A recent child law case heard at Glasgow Sheriff Court (unreported) highlights how current practice and procedure could perhaps be tailored to make the administration of justice in children’s cases more efficient.

The sheriff required to make a decision on which school an 11 year old child should attend. As a consequence of that decision, the general arrangements for her care would require to be altered.

The child's father sought a residence order and interdict to prevent the mother from removing the child from secondary school in Glasgow. The mother defended the action, seeking a residence order and a specific issue order to enable the child to attend the local primary school following a house move. A decision required to be made relatively urgently, not least because the child was aware of the situation. Resolution required to be achieved as quickly as possibly to minimise potential disruption to the child’s education.

Sheriff's initiative

There is no special procedure set out in the Ordinary Cause Rules pertaining to such situations. There is however more of a focus than ever on the expeditious resolution of family actions. More direction from the bench at an early stage in proceedings about how agents should conduct the case can lead to decisions being made more quickly.

The sheriff decided at the first child welfare hearing to speak with the child in chambers to ascertain her view, satisfying the requirements of s 11 of the Children (Scotland) Act 1995. She then convened a continued child welfare hearing at which the child’s views were fed back to the parties and an opportunity provided to explore the possibility of resolution. Agreement could not be reached. The child’s father was unable to agree that the sheriff should make a decision without hearing and considering evidence. Sheriff Anwar considered how best to achieve that in the shortest possible timescale.

A date was identified for an evidential hearing just three weeks hence. The sheriff ordered that affidavits of all witnesses be prepared and exchanged by a deadline. A further week was allowed for agents to lodge any supplementary affidavits commenting on the primary affidavits.

The sheriff considered each set of affidavits and asked agents questions on issues which had captured her attention. She heard submissions, written submissions having been exchanged and lodged in advance. The sheriff then invited parties to say anything they wished to add, having heard what their solicitors had to say on their behalf. Both parties took that opportunity, giving the sheriff a sense of how they presented. She then adjourned the hearing to the following morning for delivery of her decision. Parties were given an opportunity to say whether they wished the sheriff to issue a written decision.

Broader practice?

The experience of conducting the case in this manner caused me to reflect on whether the process followed by family actions in the Court of Session should be adopted in the sheriff court. This case was one in which an urgent decision was required, but I wondered whether a shortened form of procedure might also work well in more “run of the mill” cases, too.

The length of time from warrant to decision was considerably shorter than it would have been had the usual timetable been followed. Evidence was focused and brief.

Presentation of a case will inevitably differ depending whether evidence is presented orally or in the form of an affidavit. It can be difficult for supplementary affidavits to address fully each point made by other witnesses in theirs. There are issues around how much and what type of involvement agents should have in the preparation of witness affidavits.

Faster disposal of children’s cases can only be a positive thing in terms of delivering certainty as quickly as practicable. If the use of affidavits is to become common practice, the way in which affidavits are prepared requires to be considered carefully.

Thankfully helpful guidance is to hand. In March 2012 guidance was issued on the use of affidavits in commercial actions and published on the Scottish Courts & Tribunal Service website. The practice of reliance on affidavits had already been recognised by the First Division in the case of Luminar Lava Ignite Ltd v Mama Group plc 2010 SC 310 (at paras 70-75).

The guidance recognises that where controversial issues give rise to issues of credibility and reliability it may be necessary for the court to hear oral evidence in addition. A shorter process will arguably place a heavier burden on practitioners, who will require to focus at an earlier stage on what evidence really is critical to determination of the issue in dispute. A proactive approach to case management from the bench may assist agents in identifying those issues at an early interim stage. In the same way that the form F44 assists child welfare reporters by identifying which investigations require to be made, direction from the bench in relation to issues to be covered in evidence may similarly assist in keeping child law processes focused and efficient.

Amanda Masson, partner, Family Law team, Harper Macleod LLP
 

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