Should the court procedure in cases involving children be streamlined?

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 father of the child sought a residence order and interdict to prevent the child's mother from removing the child from her school in Glasgow. The mother defended the action. She sought 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, and also to minimise any disruption to the child’s education.

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Sheriff instigates a shortened form of procedure

There is no special procedure set out in the court rules pertaining to such situations. There is, however, more of a focus than ever upon 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 statutory requirements of section 11 of the Children (Scotland) Act 1995. The Sheriff then convened a further hearing at which the child’s views were relayed 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 later. The Sheriff ordered that affidavits of all witnesses be prepared and exchanged by a deadline, and responded to via supplementary 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.

Is this a model for other family actions in court?

The conducting of the case in this manner should give family practitioners pause for thought on whether the process adopted in family actions in the Court of Session should also be adopted in the Sheriff Court. This case was one in which an urgent decision was required, however it may be the case that a shortened form of procedure may also work well in more “run of the mill” cases, too.

There are of course considerations to be weighed up on both sides of this debate. Presentation of a case will inevitably differ whether evidence is presented orally or in the form of an affidavit. It can be difficult for supplementary affidavits to fully address 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.

A shorter process will also arguably place a heavier burden upon solicitors, who will require to focus at an earlier stage upon what evidence is critical to the 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 stage, however. In the same way that the Form F44 assists child welfare reporters by identifying which investigations require to be made, direction from the Sheriff in relation to issues to be covered in evidence may similarly assist in keeping child law processes focused and efficient.

In the recent case at Glasgow, the length of time from raising the action to the final decision was considerably shorter than it would have been had the usual timetable been followed. Evidence was focused and brief. Faster disposal of children’s cases can only be a positive thing in terms of delivering certainty as quickly as practicable. The practice of reliance upon affidavits had already been recognised by the Court of Session in a 2010 case, and if the use of affidavits is to become common practice then the way in which affidavits are prepared requires to be considered carefully.

Thankfully, helpful guidance on the use of affidavits in commercial actions was published on the Scottish Courts and Tribunal Service website in March 2012. The guidance does recognise that where there are controversial issues giving rise to matters of credibility and reliability of witnesses, it may be necessary for the Court to hear oral evidence in addition.

The exact procedure followed will of course vary from case to case, however, keeping in line with the law's focus on the best interests of the child involved, perhaps the time has come for court procedure to follow suit and be streamlined to enable decisions affecting the life of the child in question to be arrived at in a more focused, efficient manner.

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This Family Insight was written jointly by Lynsey Brown & Amanda Masson