Most people would be forgiven for thinking that a family action involving a child would be resolved relatively quickly, however, in NJDB v JEG and another, this was certainly not the case. Proceedings began in 2005. In June 2008 a proof was allowed. An eight-day proof was assigned for September 2008. The proof ran to 52 days of evidence and took over one year to complete.
Lord Reed commented that "the glacial pace of the proceedings was itself inimical to the best interests of the child". It was observed that there was no need for a dispute over contact to take so long to resolve and the court had a duty, particularly in matters involving children, to avoid such a delay in resolution.
Following these observations, the Sheriff Courts Rules council set up a group to consider and report to the Council what could be done in terms of procedure to ensure the expeditious progress of cases involving the welfare of children.
The working group recommended amendments to the rules by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No.2)2013 (SSI 2013/139).
These amendments, which come into force on June 3, 2013, provide for improved case management from the bench in cases involving orders under Section 11 of Children (Scotland) Act 1995 e.g. residence and contact, as well as in adoption and permanence order cases.
The changes introduce a compulsory case management hearing in Section 11 Proceedings which are proceedings towards Proof or Proof before Answer and are designed to focus parties' and agent's minds as to the state of their respective cases. The parties are required to provide the Sheriff with sufficient information to enable the Sheriff to ascertain various matters including but not limited to: the nature of the issues in dispute; the state of the pleadings; the state of preparation of the parties; and the reasonable estimate of time needed by each party to conduct the proof/proof before answer.
Any solicitor who is involved in family actions involving the welfare of children will be well aware of the length of time it can take to conclude matters. It has to be hoped that with the new rules, the parties will begin preparations earlier and that agents will work together to ensure that any matters capable of agreement can be agreed well in advance to avoid protracted proceedings. A lengthy court action is unlikely to benefit the welfare of the child. One hopes that rules designed to expedite those cases will ensure a child's welfare remains of paramount consideration.
Alexis Miller is a Solicitor in Harper Macleod's Family Team.
Harper Macleod's team of family solicitors understands that divorce and separation can have a huge impact on your life, and can guide you through the best course of action with sensitivity and objectivity. Getting the best advice is crucial to resolving your situation, and there are many options available to you, from litigation and arbitration to negotiation, mediation and collaboration.
To talk to Alexis or one of our team call 0141 227 9545.