Civil Courts Review

The Report of the Scottish Civil Courts Review was launched this morning. The review began its work on 2 April 2007 to report on the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, having particular regard to;

• the cost of litigation to parties and to the public purse

• the role of mediation and other methods of dispute resolution in relation to court process

• the development of modern methods of communication and case management; and

• the issue of specialisation of courts or procedures, including the relationship between the civil and criminal courts


Picking up on some points from the synopsis that may have some impact on family law;

Key Themes

• The need for a greater degree of judicial specialisation.  Practitioners and 
court users were strongly in favour of a greater degree of specialisation in the sheriff court,principally in family law, commercial law, personal injury, consumer and housing cases.  The current system makes specialisation and judicial continuity difficult to achieve.  

• Party litigants and a new forum or method for dealing with lower value 
cases.  For litigants who do not have legal representation, even those court 
procedures designed with them in mind may be inaccessible.  Respondents 
also noted that party litigants may cause unnecessary expense and delay 
through  unfamiliarity  with  procedures  or  disruptive  behaviour  and  that 
firmer  measures  are  sometimes  required  to  deal  with  those  who  pursue 
claims without merit or behave unreasonably.  
 
• Problems relating to the cost and funding of litigation.  Respondents drew 
attention  to  the  cost  of  litigation  and  observed  that  only  those  with 
considerable wealth or who are eligible for legal aid can afford to litigate.  
There were concerns about the shortfall between what clients have to pay 
their legal advisers and what they can recover in expenses from the other 
party,  and  also  about  the  taxation  of  judicial  accounts. 
 
Recommendations

Structure of civil court system
• A system should be introduced whereby a number of sheriffs in each sheriffdom should be are designated as specialists in particular areas of practice, including solmen crime, general civil, personal injury, family and commercial.

A new case management model
• [New] District judges new will have jurisdiction to hear housing actions, actions for payment of £5,000 or less, and referrals and appeals from children’s hearings, and concurrent jurisdiction with sheriffs in family actions.

•In the sheriff court actions will be transferred to a court in which a sheriff with the relevant specialism is resident. Procedural business will be conducted by email, telephone, video conferencing or in writing.

Mediation and other forms of dispute resolution
• The Report recognises the value of Alternative Dispute Resolution ....

Access to justice for party litigants
•There are recommendations for the promotion of public legal education , improved online provision of information for members of the
public the development of in‐court advice services nd the rights of lay representatives (or ‘McKenzie friends’) of party litigants

Civil Courts Review Source Scottish Courts

See also Scottish Parliament Information Centre research briefing.

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McKenzie Friend Petition: Recent Submissions

The Scottish Parliament's Petition Committee has recently received submissions for Petition 1247 from Consumer Focus Scotland, the Civil Justice Committee of the Law Society of Scotland, the Faculty of Advocates and Ian Hanger QC (the original McKenzie Friend) for Petition 1247. Petition 1247, coincidentally by Stewart Mackenzie,   calls for the introduction of a McKenzie Friend facility in the Scottish Courts. A McKenzie Friend being someone in England & Wales (and some other jurisdictions) who provides a litigant in person with support, covering tasks such as taking notes, providing moral support and giving them advice as to how to pursue the case. This can include giving advice in court, for example in terms of questions to ask or procedures to be followed.

The Civil Justice Committee of the Law Society of Scotland said it does not see a 'strong driving requirement' for the introduction of a Mackenzie friend facility in the Scottish courts as the current system allows a judge to consider whether or not it is appropriate for a litigant to have the assistance of a lay representative on a case by case basis.

Ian Hanger QC, writes the Australian experience has been that it has worked successfully and urges the Scottish Parliament to permit the appearance of the McKenzie Friend. He also states that McKenzie Friends should not be entitled to charge any fee for services and to do so, in Australia, would be breaching the Legal Services Acts. This certainly is not the case in England & Wales where some McKenzie Friends do charge a fee.

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Views and Experiences of Civil Sheriff Court Users

A small scale study commissioned by Consumer Focus Scotland and the Scottish Legal Aid Board shows court users can find themselves believing what’s to come is going to be far worse than it turns out to be. The research was limited by difficulties involved in identifying and accessing court users, with the researchers warning the eventual sample of litigants cannot be said to be typical of the population of unrepresented litigants currently pursuing cases through the courts.

The interviews undertaken by Ipsos MORI with litigants covered:

* Accessing civil justice
* Appearing in court
* Fairness of process
* Self-representation
* Information provision
* Court staff
* In-court advice services
* Cost of litigation
* Timescales

The study points to an urgent need for better information for the public, and wider access to support services in all courts. Whilst the scope of the research was limited it highlights where knowledge gaps exist and where there are
possibilities for further research. None of those interviewed had experienced ordinary cause procedure, and considering that these cases are likely to be more complicated, with no standard forms available to help unrepresented litigants, there is good reason for ensuring this group is included in future studies.

The findings of the study are being submitted to the Civil Courts review being led by Lord Gill, and to the Scottish Government. Consumer Focus Scotland is also submitting its written evidence to the Public Petitions committee of the Scottish Parliament on the introduction of McKenzie Friends to assist unrepresented litigants

Press Release Source Consumer Focus Scotland 30 July 2009

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Court Closures: No Decision

Apparently the Scottish Government has said there are no plans to close any sheriff's courts and the leaked Scottish Court Service Strategic Board document proposing cuts of up to a third of Scottish courts in this post yesterday was the worse case scenario. Alan McCreadie, Secretary of the Law Society of Scotland’s Criminal Law Committee was quoted in The Journal today saying he Law Society would expect to be consulted on changes to the court system and access to local courts must be maintained.

Article Source The Journal 16 July 2009

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One Third of Scottish Courts Could Close

As if it doesn't take long enough to divorce a report prepared for the Scottish Court Service Strategic Board and leaked to The Herald contains radical proposals to close 19 of Scotland's 53 court buildings requiring 3400 sitting days to be accommodated in the remaining courts. This would be achieved partly through increasing the use of larger courts and partly through the introduction of "mobile facilities" covering the southwest and northeast of Scotland. The proposals would mean that waiting times between first calling and trial would increase in the range of 13 to 31 weeks and the non-replacement of some judges and sheriffs when they reach the mandatory retiring age. The measures are being considered following the Government's instruction to all its departments to illustrate a 5% reduction in their budgets.

A Scottish Government spokesman said he would not comment on the specifics of a leaded document. However, as a result of the £500 million cuts to Scotland's budget announced by the Chancellor as part of the UK Government's Budget, all public sector agencies were looking at what savings can be made and examining possible options, he said.

Article Source The Herald 15 July 2009

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Bloggers Guide

Many people do not seem to realise they have a duty to use information given in court proceedings for the purposes of the proceedings only and there are restrictions on disclosing information. When the rules don't allow it disclosing information contravenes Article 6, Human Rights Act 1998, the right to a fair hearing, and if children are involved their rights to privacy and anonymity.


Lucy Reed of Pink Tape has now compiled a useful list of ten things bloggers should know when writing about family proceedings.

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Sharia Rulings 'Inappropriate'

Sharia courts should not be recognised under Britain's 1996 Arbitration Act, according to a new report from independent think-tank Civitas.


According to Denis MacEoin, author of Sharia Law or 'One Law For All'?, sharia courts operating in Britain may be handing down rulings that are inappropriate to this country because they are linked to elements in Islamic law that are seriously out of step with trends in Western legislation that derive from the values of the Enlightenment and are inherent in modern codes of human rights. Sharia rulings contain great potential for controversy and may involve acts contrary to UK legal norms and human rights legislation.


Full press release Source Civitas 29 June 2009

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SLAB Ordered to Pay Defendant's Costs

Apparently the Scottish Legal Aid Board have been ordered to pay a man's legal cost for defending court actions paid for by the Board. After William Bohannon separated from his partner he tried to get her to pay a personal bond of £50k he had loaned to her. His ex-partner refused, was sequestrated and then raised actions in the Court of Session in Edinburgh seeking to recall the sequestration and have the personal bond set aside. Carol Ballard, or Young as she is now after marriage, was granted legal aid to fund her actions but both actions failed.

Mr Bohannon successfully defended the actions, but was left with lawyers' bills of more than £33,500 and asked the Court to find the legal aid board liable for his expenses in the action. To clarify, when assessing someone's eligibility for legal aid SLAB must follow rules set down in law by Parliament so there needs to be a legal basis for a case as well as it being reasonable in the particular circumstances to award legal aid. The solicitors acting for William Bohannon had repeatedly raised with SLAB there were problems and asked that legal aid granted to Carol Young be suspended.

Lord Brodie said "The board has not chosen to defend its conduct in the matter" and he was satisfied that Mr Bohannon would suffer financial hardship if no order was made.

Full article Source The Herald 27 June 2009

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At-risk Children Left in Danger

On Tuesday a report by HM Inspectorate of Education on Dundee's children's services brought forward after the killing of toddler Brandon Muir says child protection there was unsatisfactory. Social workers had been alerted to concerns over Brandon before he was killed by his mother's drug addict boyfriend, Robert Cunningham, who was sentenced to 10 years in prison. The damning report highlighted the failures of the Council, the police, heath services and court officials in Dundee to protect vulnerable children from "significant harm" in the homes of drug addicts and alcoholics.

Full article Source The Scotsman 24 June 2009

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Privacy and the Family Courts

After thousands of family court hearings that previously would have taken place in private in England & Wales were opened to the media in April following lobbying from fathers’ groups, campaigners and the media, the Earl of Spence and his wife Caroline are seeking injunctions on press coverage. Mr Justice Munby earlier rejected requests to ban the press from their divorce hearing saying it was a new public policy that the media be allowed to attend family hearings unless proper grounds could be shown to exclude them.

Full story Source The Times 24 June 2009

Update: The Earl of Spence and his wife Caroline decided to resolve the issues without the aid of the judge. Details of their final settlement will not be made public.

Report Source The Telegraph 24 June 2009

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News Roundup 4

The news is rather quite on the divorce front in Scotland at the moment but there are several recent interesting stories from south of the border.

Divorce settlement granted after 22 years

A woman has won £220,000 in a ground-breaking divorce settlement — 22 years after separating from her husband.

They were married only four years before they split up but they never formally divorced.

The woman, who is in her fifties and lives in West London, was prompted to bring her claim after learning that her husband had secured a windfall by inheriting some money.

Full report Source The Times 13 June 2009

Judge calls for action to stop British 'epidemic' of family breakdown


A national commission should be created to tackle Britain’s “epidemic” of family breakdown, a senior judge said yesterday.

Mr Justice Coleridge, a Family Division judge, said that the commission should establish marriage as the “gold standard” for relationships and put an end to the constant games of “musical relationships” or “pass the partner”, which can scar children for life.

Full story Source The Times 17 June 2009

History-making divorcee Julia McFarlane is awarded an extra £100,000 a year

A divorcing wife who made legal history when the law lords awarded her a £250,000-a-year payout from her husband has won a 40 per cent increase in her maintenance payments.

Julia McFarlane, 49, who separated from her husband Kenneth in 2000, will receive £350,000 a year although her needs have been put at £150,000.

Full story Source The Times 20 June 2009

Tycoon Scot Young faces jail in £400m divorce

A secretive tycoon at the centre of one of Britain’s biggest divorce cases is facing jail over the whereabouts of his £400m fortune.

Scot Young, a “fixer” to Russian oligarchs and British billionaires, has been told that he could be imprisoned for failing to tell a High Court judge where his money has gone...........

The judge has ordered that Young’s passport be seized to stop him fleeing the country. “There is a real risk that he will leave the jurisdiction and not be seen again,” Mr Justice Charles told a hearing at the High Court last week.

Full story Source The Times 21 June 2009

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Rape Victim Found Dead

The Firm reports Ann Robertson, the woman who fled from the witness stand during cross examination about her previous relationship in a rape case and was imprisoned, has been found dead. Later Scotland's most senior judge investigated and upheld a complaint about her treatment.

See my earlier posts Restrictive Rape Laws and Ann Robertson's Complaint Upheld.

The cause of death is unknown at this time.

Full article Source The Firm 12 June 2009

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Rape Not Proven

After a four-day trial at the High Court in Inverness rape charges against a Portuguese man were found not proven by a majority verdict. Djarga Balde, 24, was accused of of raping three women in Buckie and Elgin between 2005 and 2008.

Full story Source The Scotsman 12 June 2009

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Contact Non Compliance: 3 Month Sentence

According to The Scotsman a woman has failed in her appeal against a three month sentence she claimed was "harsh and oppressive."
Tina Monem, 26, failed to comply with a contact order to make her child available for six hours contact a week after her allegations against the father were found to be unsubstantiated. The sheriff held her in contempt although it seems sentencing was delayed to see whether new contact arrangements would be successful. A three month sentence was then handed down and the mother was released after a few days pending the appeal.

Three judges in the Court of Session ordered Tina Monem to return to prison to complete the sentence and found she had committed contempt against them too. Lord Gill, the Lord Justice-Clerk, speaking on behalf of the appeal court, said the mother was to be given the opportunity to "reflect on the gravity of her conduct and to desist from it" and sentence for the contempt of the appeal court was deferred for six months.

Full story Source The Scotsman 6 June 2009

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A Child's Wishes

In the recent English Court of Appeal case R (A Child) [2009] EWCA Civ 445 a mother appealed against a residence order in favour of the father. A brief history of the case was the parents had separated in 2001 after a relationship of about three years when the child was nearly two. The father had remarried and the child lived with the mother. In 2008 the mother was suffering from drink problem brought on by the suicide of a good friend and approached the father for help as she felt she could not cope. It was agreed that the son should live with the father given the mother’s problems. Shortly after wards the father applied for residence which was granted despite a CAFCASS report recommending that the child should live with the mother.

The mother appealed on the basis that the judge i) had lost impartiality in questioning the mother; ii) erred in his treatment of the child’s wishes and iii) had been wrong to reject the CAFCASS recommendation. All three judges agreed point i) that the judge had not put any pressure on the mother with his questioning.

There was dissent between the judges on point ii) and iii). Wall LJ said "He [the judge] was in my judgment correct to treat the wishes as but one of the several checklist factors to which he had to have regard and he properly went through the checklist. " He went on to say the CAFCASS officers recommendation “on balance, I think L should return to live with his mother” was not strong and the "judge was well able to conduct his own evaluation of the relevant consideration."

This was countered by Rix LJ:

"in my judgment, he [the judge] has erred in more than the balancing of the weight of various check-list factors. He has erred essentially, in setting on one side the firm evidence of the child’s own wishes, and in rejecting the CAFCASS reporter’s own clear recommendation, in favour of a return to residence with the mother, together with the reasons given for both. He has not done so because of any new evidence or of a reasoned challenge to the opinion of Dr Cochrane [CAFCASS officer]. He has simply critically discounted the child’s wishes, and essentially ignored Dr Cochrane’s recommendations and conclusions, and has done so without hearing either. The CAFCASS reporter is, to a very great extent, the eyes and ears of the court, especially where the child is concerned, but the judge has not “listened” to the child, and he has ignored the reporter."

Moore-Bick LJ agreed with Rix LJ that there should be hearing before a different judge and that another CAFCASS officer should be asked to prepare a fresh report for that purpose.

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Baby Peter

The horrific story of Baby Peter , just 17 months old when he was found dead in a blood-spattered cot in August 2007 having suffered a broken back and fractured ribs has been widely covered by the media and other bloggers. He had more than 50 injuries despite being on the at-risk register and receiving 60 visits from social workers, doctors and police over eight months. On Friday the mother of Baby Peter, described as an aggressive and manipulative woman, was sentenced at the Old Bailey to 10 years in prison for causing the death of her child. Earlier in the week her boyfriend was sentenced to 12 years in prison for causing Baby P's death and life for raping a two-year-old girl.

Apart from this post linking to the chronology from the official files and the Scots' Reaction to Lamming (the report into child protection services in England ordered after the conclusion of the case) there has been little more I can add to the weeks of extensive coverage.

Article Source The Herald 23 May 2009

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Supporting Young Adults

Yesterday in R (G) v Southwark London Borough Council the House of Lords ruled that a 17-year-old who was thrown out of his home by his mother should have been provided care by his local authority and not just provided accommodation by the homeless persons unit.

This was of particular interest because as older teenagers our children were in the habit of bringing home waifs who for one reason or another couldn't stay with their parents. Over a number of years we had a total of 4 young people staying with us at different times and as indicated in this earlier post stability and support encourages young people to remain in employment, education or training. 3 out of our 4 went on to graduate with good first degrees and one is starting a PhD after the summer.

Family Law has a full case brief, this is part of the summary.

... Having been thrown out of his home by his mother and after sleeping on friends' sofas and in their cars, the teenager presented himself to the authority social services department requesting accommodation.

The authority provided the child with bed and breakfast accommodation, but concluded that, given the child's resourcefulness and age, accommodation provided by the homeless persons unit, with referrals to other support agencies, would be sufficient for his needs.

His solicitors argued that the child should in fact be accommodated pursuant to s 20(1)(c) of the Children Act 1989, thereby becoming entitled to the wider range of services available to a 'looked after child' and eventually qualifying as a 'former relevant child'.

The Court of Appeal dismissed the child's application for judicial review, stating that the local authority had been entitled in this case to decide that, even though the child was unable to live with the mother and had no other home, as a resourceful teenager capable of sourcing accommodation provided that he was given assistance to do so, he needed only 'help with accommodation' .........,,

If, as in this case, a child met those criteria, the child was entitled to support under s 20 once every item on the list had been assessed in the child's favour, the duty had arisen, and the authority were not entitled to 'side-step' that duty by giving the accommodation a different label. A local children's authority could not avoid their responsibilities by 'passing the buck' to another authority, such as a housing authority, but could ask another authority to use its powers to help them discharge theirs.

Full summary Source Family Law 20 May 2009

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Embezzlment: Family Solicitor Jailed

William Rennie, who was a family solicitor in Ayrshire, was jailed yesterday for a year after stealing almost £90k from clients. In 2004 it was discovered he had embezzled money from the accounts of clients to pay off a VAT bill in an attempt to avoid legal action and he ceased trading after the Law Society became involved.

At the trial Sheriff Alistair Watson told Rennie "A solicitor has a special place of trust in the lives of people and the abuse of that trust is always extremely serious."

Full story Source The Herald 19 May 2009

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Swearing Judge

In this earlier post I mentioned Lord Justice Wall's judgement quoting This Be The Verse by Philip Larkin which begins: "They fuck you up, your mum and dad/ They may not mean to, but they do/They fill you with the faults they had/ And add some extra, just for you."

This was the case R (A Child), Re [2009] EWCA Civ 358 in England where court battles over a child's residence began six years ago and psychiatric reports found that his involvement in the parental battle would have a high risk of increasing his "negative and aggressive behaviours", causing a negative self-image and relationship difficulties. An original order that the boy should live with his paternal grandparents was set aside.

In a general warning to all divorced parents, the judge said: "This mother and father are no different from many separated parents who make the damage to their children caused by their separation much worse by continuing their battles against each other in legal proceedings."

Full article Source The Guardian 30 April 2009

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PE1247

Earlier this afternoon Margo MacDonald (Independent) asked the Scottish Executive whether it will introduce the practice of allowing a McKenzie’s Friend into Scottish courts. Justice Secretary Kenny MacAskill said already a person may be accompanied a friend, relative or lay person in small claims and summary causes sheriff's courts. One thing that differentiates Scotland from England & Wales, he continued, is the wider and broader access to legal aid allowing greater opportunity for representation. Lord Gill's upcoming Civil Courts Review will consider McKenzie Friends and the wider issues of those representing themselves .

This followed consideration by the Public Petition Committee on Tuesday of petition PE1247 by Stewart Mackenzie calling on the Scottish Parliament to urge the Scottish Government to introduce a McKenzie Friend facility in Scottish courts as a matter of urgency. 'Charmer' Robin Harper (Green) thought it common sense and suggested asking the Scottish Government directly if it will introduce McKenzie Friends and if not, why not. It had been agreed to write to the Scottish Government, Faculty of Advocates, Lord President of the Court of Session, Her Majesty’s Courts Service, Scottish Courts Service, Citizens Advice Scotland , Money Advice Scotland and the Scottish Consumer Council seeking responses to the points raised in the petition.

Nigel Don (SNP) made the point McKenzie Friends were not something introduced by Government, it was something which the courts in England & Wales simply allowed. Bill Butler MSP, I think it was, asks a novel question - what evidence is there McKenzie Friends work?

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