Family cases: another view

A family law practitioner takes a different position to the views expressed in the July article on the best way to resolve disputes over child care

The Journal, August 2007, page 16

Roger Mackenzie’s article (Journal, July, 20) is a welcome contribution to the current debate on how courts deal with family cases, in the context of Lord Gill’s review of civil justice. However I found myself disagreeing with many of the views expressed. This is no surprise since there will be as many views as there are solicitors in this area. Also there is no “one size fits all” solution. What works for one family dispute will not work for another.

In defence of welfare hearings

Despite the initial assertion that little progress is made by using child welfare hearings, I actually consider they have been an extremely useful innovation. However they only really work when the same sheriff deals with the case throughout. A sheriff who is prepared to make the hearing work will observe parties’ demeanour, their willingness to listen and to take on suggestions. The sheriff sets out what is expected of parents and can then test assurances given and excuses made.

If it becomes clear that a parent is not co-operating with the court, the sheriff moves to imposing orders. That process may take a number of hearings. That is not to say that cases are trailing on without progress. The father denied all contact without good reason will be delighted with even a little contact, and progress, however slow, towards more meaningful time. The mother who doubts his motivation or ability with her child is reassured by the child returning safe and sound and maybe even starting to look forward to the visits.

The question raised by Margaret Scanlan about courts being the right place for this is central to the review. While there may not be “a lot of law in it”, I suggest that what there is is crucial. We can be sure that the court is going to need a very good reason to refuse contact. The shift in onus in White v White 2001 FamLR 21 made the issue crystal clear. That is amazingly helpful when advising clients. We have to ask, how would a mediator or tribunal get that message across? Frequently the prospect of facing a sheriff is needed to do so. No volunteer-based system will have the requisite authority to persuade some mothers that they don’t know best what is in their child’s interests.

Special measures

The present system does however need a radical overhaul. If we must retain courts, as I believe, then we should take what is best from the Glasgow family court experiment. A dedicated team of sheriffs, though, is just the start. A building separate from ordinary court business – certainly from criminal cases – is essential. Sheriffs who are motivated, and trained, to deal with the special issues which arise in family cases are needed. But more important is the type of support services Maureen Lynch advocates. Almost daily I wish I could refer clients to a programme on reducing conflict and promoting positive parenting behaviours. That would go a long way to reducing the number of cases in court.

I’m sure sheriffs would welcome such services wholeheartedly. I doubt that many would endorse Sheriff Johnston’s view that sheriffs should be trained to act as mediators. These roles must be separate. A sheriff is needed to exert authority when it is needed – and it probably always will be needed for certain cases. A mediator, in contrast, is a figure of facilitation and helpfulness. Family courts should continue to refer to mediation services as they do now.

I also believe that children should be interviewed by court welfare officers, specially trained for the job, rather than by a sheriff. If they were available we could dispense with the appalling form F9.

Whose report?

Where there are disputed facts the court comes into its own. In child cases, however, sheriffs avoid proofs, often for good reason. Margaret Scanlan disputes the present usefulness of the bar report, but it provides a speedy information-gathering service for the court and its format makes it easy to test the soundness of any conclusion, which is not always the case with social work reports.

Using lawyers has another benefit, as awareness of the current law will inform the whole report. Where a parent opposes contact their reason for doing so has to be tested. Is it bitterness, anger or some other selfish reason, or is it fear and genuine concern for the child? It isn’t enough just to record it or to disagree. It has to be examined for the report to be useful to the sheriff. However I do agree that if we had the right support services the need for such reports would reduce and possibly disappear.

When the fears are real

One issue not addressed in the article is how to ascertain when contact actually isn’t in a child’s best interests. Where there is an allegation of abuse of the child, or of the parent with care, the truth of the allegation must be established before proceeding with contact. Mediation is usually not appropriate where one party has been abused, and I doubt that the other support services would function properly. Is a court avoidable in these circumstances?

A real opportunity

I endorse Maureen Lynch’s view that good family lawyers have a role in supporting separating parents and that the lawyer’s approach is critical. We are now proactive in bringing clients to accept what the law says about contact. It isn’t simply a question of taking instructions. The issue of enforcement remains difficult, but a sheriff insisting on a party coming to court to face judicial ire can often be enough. I can’t see a children’s hearing-type tribunal having any more success than sheriffs now do, and probably significantly less. I also fear that if these cases were sent to such a tribunal, the shortcomings of the children’s hearing system would simply be repeated.

While I accept that a multi-disciplinary approach is needed, I am not sure that collaborative law as currently available is the answer. Family lawyers involved in these cases effectively use a co-operative approach now. Agents talk to each other and liaise with teachers, social workers, drugs agencies, medical practitioners. What we don’t have is someone attached to court to whom parents can be referred for assessment, and then the right support, whether it is mediation, parenting classes, counselling or whatever.

These are people cases. We need the law to give us the framework for sorting out these disputes, but where children are concerned it takes more than that. Lord Gill’s review gives us a wonderful opportunity to go back to first principles and examine our role in the process, and to come up with creative solutions for the way forward.

Liz Welsh, of the Elizabeth Welsh Family Law Practice, Ayr, is an accredited specialist in family law