Inspiring, nurturing and supporting families
Promoting and educating supportive policies and services for children and their families. Because doing the right thing is important to us!!
The Scottish Legal system is substantially different from that of England, Wales and Northern Ireland, and presents a considerable challenge to those unfamiliar with it, especially if they have already experienced the English system with its rather streamlined application procedures and relatively informal proceedings before District Judges.Fortunately, in so far is it affects children, the statute law in Scotland is simple and virtually identical to that in England. The relevant act is the Children Act (Scotland) 1995, which is more or less identical to the Children Act 1989, which is the English legislation. The only real differences are in the numbering of the sections, for instance, what Englishmen refer to as "Section 8 Orders" - anything to do with residence, contact, specific issues or prohibited steps - are called "Section 11 Orders" in Scotland.
Scotland has two levels of Court which cover Family Law. There are the Sheriff Courts, and the Court of Session. The Court of Session, Scotland's supreme civil court, sits in Parliament House in Edinburgh as a court of first instance and a court of appeal. The court is headed by the Lord President the second in rank being the Lord Justice Clerk. Whereas the Sheriff courts are where the majority of cases are dealt with in the country’s 49 Sheriff Courts unless they are of sufficient seriousness to go to the Supreme Courts at first instance. There are two Supreme Courts, the Court of Session and the High Court of Justiciary. The High Court of Justiciary is Scotland's supreme criminal court. When sitting at first instance as a trial court, it hears the most serious criminal cases, such as murder and rape. A single judge hears cases with a jury of 15 people. At first instance, it sits in cities and larger towns around Scotland and has a permanent base in Edinburgh, Glasgow and Aberdeen. As an appeal court, it sits only in Edinburgh.
Scotland is divided into six Sheriffdoms, for example Edinburgh, Glasgow, and each of these has its own Sheriff Court. Since 2000, Sheriffs have all been full-time, as the former system of senior solicitors sitting as Temporary Sheriffs was declared illegal under Human Rights legislation. Sheriffs are rather higher up the scale than most District Judges, but not as high up as a High Court Judge in the English scheme of things. However, they act in much the same way as District Judges, sitting alone, listening to the evidence (in theory at least) and making orders.
The Court of Session is the supreme civil court in Scotland. It consists of an Inner House and an Outer House. The Inner House concerns itself with appeals, whilst the Outer house can deal with primary legislation, including family law. The Court of Session exists only in Edinburgh and you have to go to Edinburgh to use it.
There are advantages and disadvantages of using either court (but mostly disadvantages!). Sheriff courts are in theory cheaper, as solicitors and advocates (an advocate is what an Englishman would call a barrister) cannot charge as much for appearing there. Also, all Sheriffs have some experience of family law. On the down side, a Sheriff's jurisdiction covers only his own Sheriffdom, so for example if you wanted an English court order enforced in Scotland it might be a mistake to go to the Sheriff who could enforce it in Glasgow, but not in other parts of the country. Also, judgements of Sheriffs tend (perhaps with justification) to gain little respect from English courts, and the chances of having an order made by a Sheriff enforced in England are quite low. We have, also, to be fair, heard no good reports whatsoever from fathers regarding Sheriffs, and a great deal of what we have heard suggests bad practice and prejudice on a widespread scale.
The Court of Session covers the whole of Scotland, and is rightly respected in England. Despite its prestige, its actual procedures are no more difficult than the Sheriff courts, though representation there can cost a lot more. It is also necessary to live or to be able to stay in Edinburgh to use it. On the downside, the Lords Ordinary, as the judges are called, are not all experienced in family law, and some are thought to regard all family actions as being beneath their contempt and to be not worth listening to. The listings people make some attempt to match cases to appropriate judges, but may not always succeed and it is possible to lose out badly because of the luck of the draw on a particular day.
It is very important to note that there is no "Family Division" in the Scottish legal system. All the judges at any level are generalists with stronger and weaker levels of interest in various things. The judgement of a Sheriff can be appealed to the Sheriff Principal, and thence to the Inner House of the Court of Session (where it will be heard by at least three judges). A judgement from the Outer House of the Court of Session can only be appealed to the Inner House. The final stage is appeal to the House of Lords, which is possible for civil cases in Scotland, such as family law, but not for criminal ones.
If you want to start an action in Scotland, e.g. for contact, if you live in England it might be worth talking to your local English court first. English courts (to the great annoyance of Scottish judges) have a tendency to accept jurisdiction on the most tenuous of grounds, and if you can get an order in England it might make it easier to get one the same in Scotland.
You have to be careful here. Scots lawyers are very proud of the independence of their system, and can be insulted if you suggest that the English system is better. You would need to play ignorant, making it clear it was the English court, and not you, that made a decision about the jurisdiction, and then use the existence of an English order as evidence in support of your case.
If however, you decide you need to launch an action in Scotland you have to choose which court, but whichever you choose the procedures are much the same. In Scotland, the person raising an action is called the Pursuer, whilst the person on the receiving end is called the Defender (cf Applicant/Respondent or Claimant/Defendant in England).
The Summons & Defences
You have to issue a summons, which must take a particular form. There is standard wording on the front (we can provide examples and help with this) and it then falls into three sections: the Conclusions, which are the orders you are asking for, e.g. residence or contact on specific dates, etc, the Condescendences, which are the statements in support of your conclusions, the basis of your evidence, and finally the Pleas-in-Law, which are the technical legal reasons why your conclusions should be granted. These latter will typically be very short and make some comment that it is in the child's best interest that such an order be made rather than no order be made at all. You have to draft all this yourself, there are no forms to fill in like the English C1 form. The system here is still geared up to preserving the lawyers' monopoly.
Once the Summons (sometimes called a Writ) is issued it has to be signetted and lodged for calling (Court of Session), or registered (Sheriff Court). These are the processes whereby the summons is officially received by the court and which start the clock ticking. The Defender then has a limited time to lodge a notice of intent to defend and then lodge defences. Unlike in England, where only the Applicant pays an issue fee, in Scotland you have to pay the court to lodge defences as well; these fees are of the order of £75. Defences take an official form which is an answer to the Condescendences in the summons. These have to be got right; theoretically every point must be answered and either admitted or denied. Anything not specifically denied is assumed to be admitted.
Adjustment of Pleadings
A period is allowed for adjustment of pleadings, so that you can change your summons in view of something claimed in the Defences, and the Defender can then adjust the defences. Each change is meant to be intimated to the other side and expressed in a form so that what has been changed can be clearly seen. The Pursuer is responsible for maintaining a complete record of all the changes by each side, and lodging it shortly before the Options hearing.
The Scottish Courts are supposed to be stricter than the English about sticking absolutely to matters raised in the written pleadings, and thus it should be much more difficult to be ambushed at short notice with new accusations. This does not always turn out to be the case in practice though, as in the end Sheriffs and Lords Ordinary have more or less total discretion about procedure. However, the adjustment of pleadings system should be used to make sure you have included absolutely everything you want might to say.
One of the problems is of course that, particularly in family actions, there is a lot to say, and the amended pleadings can become very long, which serves to obscure the real issues and annoy the judge. It is best to be as brief as possible, whilst ensuring you have denied everything you need to deny.
Option Hearings, Proofs & Welfare Reports
An Options hearing is like a Directions hearing in England. In cases involving children it may be preceded by a child welfare hearing. Commonly a report will be ordered, and there can be one (but, unlike in England, only one) further Options hearing, before the issue wends its way to a Proof, which is what would be called a trial in England, where evidence is led and witnesses cross-examined. After the Proof, the judge will make such orders as he is persuaded are necessary and issue them on an Interlocutor, which is the sheet on which he writes the orders. It is not a fancy printed thing, usually just a piece of blank paper which is later stamped by the clerks.
There is further scope for amending of pleadings after Options hearings, but these must be fixed fourteen days before the Proof.
Such is the theory. In practice, many things are decided in Motion Roll hearings. Any party can enrol a motion at any time during a process: you intimate your intention to enrol a motion it to the other party, then you fill in a form and pay the court fee. Then, both parties will get chance to argue the merits before a judge, often with affidavit evidence but only very rarely with witnesses in person. A motion might, for example, be for contact at a particular time before the Proof, or for a procedural reason, or for an interdict to stop a child being removed from the jurisdiction, and so on.
The completion of a welfare report would almost certainly give rise to a motion roll hearing, with whichever party felt most advantaged by the report enrolling a motion for an order enacting the conclusions of the report, for example, for residency, or for recall of an interdict, thus allowing the child to be removed from Scotland.
Often such a motion will be so significant that it will de facto complete the action, as there will be no point in trying to continue it to Proof afterwards, given a new status quo will have been created. Thus, your life can be turned upside down without you ever getting the chance to lead evidence as such, or to cross examine her (I mean, the Defender's) witnesses. Affidavits will be taken at face value, so fight fire with fire in this respect.
The issue of welfare reports is very significant in Scotland. We do not have Cafcass, nor even the old Court Welfare Service. We dream of such things.
In Scotland, welfare reports are almost invariably prepared by lawyers; either advocates or solicitors, who have no qualifications whatsoever in child development, social work, psychology, or indeed anything useful in this context. Consequently, the standard of these reports is often extremely low. What is more, unlike in England where a Cafcass report is paid for from the public purse, in Scotland a report must be specifically paid for as part of the action and in the first instance the Pursuer (who is in most cases, of course, the father) is initially responsible for the bill, which can be anything from £1000-£5000 or more, depending on the time and travel involved. If you have Legal Aid, then the Scottish Legal Aid Board will pay this, and if the Defender has legal aid it may be possible to agree that she (sorry, I mean he or she) should pay it from Legal Aid, depending on the level of cooperation that can be achieved, but in most cases you have to be prepared to stump up yourself, regardless of whether you win or lose the case in the end.
Note also that it is up to the judge whether a report is ordered; if he decides one is needed you will not realistically be able to object because you cannot afford it.
There is no right to cross-examine a reporter as such, and only rarely is there any way of questioning "facts" referred to in a report.
One of our principal focuses of campaigning in Scotland will be for a proper welfare reporting service, free at the point of use.
It is perhaps worth mentioning that if Social Services have already had some involvement with the children in question, it is just possible that they may be asked for a report instead of a lawyer being appointed. This will be cheaper, though Social Services' reputation for protecting children is just as bad in Scotland as everywhere else and their involvement is more than likely to make bad things a lot worse.
Once an action is concluded, there is the issue of expenses. It is more common for expenses to be awarded in family actions in Scotland than in England, but it is by no means universal, and it is often safe to bet that each side will end up paying their own costs regardless of the outcome. If you are a man, this means you will pay a lot more on average, because you will probably have to pay for the report or reports.
The costs of representation (yours or hers) are very significant however; each day in court is likely to cost £2000 for each side at least, so litigation is a high risk strategy unless you have Legal Aid. Legal Aid must, of course, be applied for separately in Scotland, though the criteria are much the same as in England - unless you are unemployed or a student you will earn too much to get it, and no account is taken of outgoings such as child maintenance or costs of travel to maintain contact.
