There are two lessons to be drawn from a recent Court of Session judgement by Lady Wise refusing an application by a mother to relocate to England with their son against the wishes of the father. FNF Scotland hope that this case will inform the coming debate on the review of family law and consideration of case management in family cases in Scottish courts.
The first is that any reform will have to be accompanied by a programme of public education – and political leadership – that parents who separate have a responsibility to their children to support their former partner’s right to be their father/mother above any personal animosity they may still feel.
While we do not want to pick further at the raw wounds of the parties in that specific case, some of the observations made by Lady Wise are continuing themes in the stories we hear at our monthly group meetings around Scotland.
Not least of the resonances is in her observation that, “O [the child] is not a prize to be won or lost in this contest. He is a little boy with two parents whose ongoing involvement in his life he has come to expect insofar as a 2 year old child has any expectations.”
Lady Wise also explained why she was refusing the separate application by the mother for an order that she should be awarded residence with the child. It is one of the themes FNF Scotland will be stressing during the forthcoming debate and that underpins our campaign for a presumption of sharing parenting after separation.
In refusing the application Lady Wise said, “I have already commented that she (the mother) seems to misunderstand the nature of such an order. It would not give her the right to take important decisions about O’s (the child) care and upbringing, including his education, without reference to the defender.” and adds “There are good reasons for not making a Residence Order in this case. The absence of a Residence Order will send a signal to the pursuer that neither party has ultimate authority over this child.”
The terms “resident” and “non-resident” parent immediately invite parents and their families to perceive a difference in status between them. The Children (Scotland) Act 1995 refers to “residence” and “contact” orders, which perpetuates this unhelpful distinction.
The second lesson we hope is taken seriously in the forthcoming debate concerns the current adversarial process in deciding family conflicts. While such proof hearings may be successful in testing the evidence of the parties, this adversarial process may itself drive them further apart. We have written before that parents have to find a way of collaborating in the interests of the children long after the judge has moved to the next cases and their solicitors have closed the files.
This proof hearing took six days in the Court of Session, with both parents and a large number of witnesses producing affidavits and giving evidence under oath, some of which Lady Wise found inaccurate and unhelpful. The costs to each party will have been eye-watering. Following this judgement the mother and father will have to co-operate with each other on bringing up their child for at least the next 15 or more years. It would help if the maternal and paternal grandparents could be part of the solution not the problem, but this hearing allowed them to demonstrate from the witness box the substantial gulf between the two families.
If evidential hearings in family cases were held on an inquisitorial basis, with the judge deciding what evidence is necessary and conducting the examination of witnesses, such cases could be shortened and some of the hostility taken out of the proceedings.
No family case can be painless, but there is scope for significantly minimising the hurt and thereby making it easier for the parties to work together in future. Child Welfare Hearings at earlier stages of family disputes are already conducted on more of an inquisitorial basis though the practice varies in courts across Scotland. At their best they focus proceedings on what both parents can do to support their children’s wellbeing rather than running down each other’s character.
Inquisitorial does not mean soft, but it could take some of the collateral damage out of a difficult process by avoiding some of the evidence that will have no bearing on the judge’s decision but can further antagonise and undermine the parties. Lawyers will still perform a vital role, but the inquisitorial approach will focus far more on finding resolution rather than simply outgunning an opponent.
Family cases in some other countries are run on inquisatorial lines. In an experiment in Oregon, parents were offered a choice of using traditional trials or an Informal Domestic Relations Trial (IDRT) in which the fact-finding and decision making process follows an inquisitorial route.
Research published recently showed IDRT cases are typically docketed more quickly than traditional trials, last just a couple of hours and decisions are rendered promptly, usually the day of the hearing or trial. The court retains jurisdiction to modify the process as fairness requires and to divert cases where domestic violence or other reasons render IDRT inappropriate. There was a broad consensus that the IDRT process significantly enhanced the parties’ sense that the process was fair, even when the outcome was not exactly what either party had advocated.
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