Family law cases set for radical overhaul

Lord Brailsford gives his keynote speech to the Family Law Conference, Scots Law 2013 convention. Picture: Jane Barlow

We established a ‘Livelink’ connection. It meant we had to sit at unusual hours and one session was in the early hours of the morning for him but, at a cost of £6 for a year’s unlimited use, it worked very well.”

Lord Brailsford, the first ever designated family law judge in the Court of Session, told his audience at Scots law 2013 that a working group he has been convening will recommend that much more of each case should be conducted on paper, in some cases  entirely on paper; that specialist sheriffs should take responsibility for “case management” to impose strict timetables and prevent the parties using the courtroom as a venue for continuing their own unresolved issues; and that greater use should be made of technology, including video links, in the hearing of evidence.

“If it can work for Melbourne it can surely work across Scotland.”

In the first public unveiling of the thinking of his working group he made plain he has in mind a radical and imminent overhaul of the way family law cases are handled in Scotland that will not only save court time, public money and the emotional drain for those involved but will also be a pilot for changes throughout civil justice. “The Lord President,” he said, “wants family law to be the first area to be overhauled in the modernisation of civil justice.”

In 2011 13,518 family actions were raised in the sheriff courts and 149 in the Court  of Session.

Family actions represent approximately 90 per cent of sheriff court work but it is a continuing frustration for lawyers, sheriffs and above all for the parties involved that they tend to come behind criminal cases and other immediate civil work in the scheduling of business.

Cases can drag on for months or years with occasional bursts of courtroom activity and often at the expense of the relationships between the parties. The children involved can grow up waiting for a resolution.

Lord Brailsford acknowledged his own comparative lack of experience in family law when in August 2012 he was designated Court of Session Family Law Judge.

However, within a month he established a joint working group on family law comprised of members of the Court of Session and Sheriff Court Rules Councils – both bodies about to be amalgamated into the Civil Justice Council – with additional representation from the Law Society of Scotland, the Faculty of Advocates and the Scottish Legal Aid Board.

There were three elements to its remit: “In light of a) the report of the Scottish Civil Courts Review b) Mr Justice Ryder’s report in England and Wales entitled Judicial proposals for the modernisation of family justice and c) the Supreme Court’s decision in NJDB to consider the procedure to be followed in family actions and children’s referrals, with a view to ensuring that such actions are dealt with as expediently as possible: this includes enhanced judicial case management and consideration of the content of pleadings and judgments.”

The momentum for the proposed overhaul was a blistering judgment almost exactly a year ago by the UK Supreme Court in the case of NJDB v JEG. In it, Lord Reed called for a change in the culture in which family proceedings are conducted in Scotland. That case had dragged on for nine years.

Lord Brailsford said the principal purpose of his working group is to ensure procedural rules are brought in line with the need to increase efficiency, and reduce cost and delay, but also, “equally importantly, that we attempt to bring about a cultural change amongst both sheriffs and practitioners as to the conduct of litigation in this area”.

He said he had encountered very little resistance among practitioners to these objectives but there was a clear message to those on the bench who might not be so amenable when he added: “I don’t wear wigs and gowns – that’s the modern way.” Judges who do not feel comfortable with the new approach “can be tasked to do other things”.

Lord Brailsford endorsed the recommendation in the original Gill Review that there should be specialist family sheriffs where possible. Where it is impractical to appoint such a specialist in each court there could be family sheriffs at sheriffdom level who would use technology such as video link to take evidence without requiring all the parties to travel to court, costing time and money. He also floated the possibility of allocating cases across sheriffdom boundaries.

The most radical change would be the imposition of an abbreviated form of written pleadings. “The group’s view is that instead of traditional pleadings, procedure should be based on the use of forms and require litigants to provide ‘up front’ disclosure of all relevant information.

“This form of procedure would assist in saving costs and may, further, be more user friendly to party litigants … It is the feeling of the group that a significant number of family cases could be resolved entirely on the basis of forms. Completed forms could be checked by court staff, limiting judicial input to checking forms and, where satisfied, granting decree as craved.”

As designated family judge Lord Brailsford has already implemented a “voluntary” system of case management in the Court of Session, with strict timetables and a requirement for parties to identify the issues to be decided, and to make full disclosure of evidence at the outset.

Most of the changes recommended by the working group do not require primary legislation at Holyrood and, after only three meetings, have already been submitted to the Lord President, Lord Gill.

The innovations that would require primary legislation would be the allocation of work between sheriffdoms and proposals to change the structure of judgments in contact and residence cases that were criticised by Lord Reed in NJDB v JEG.

He wrote: “The form of judgment that has been prescribed for the sheriff court since 1851, divided into findings of fact in law and a note in which the findings are explained, has certain disadvantages in a case of the present kind.”

Lord Ryder, who was last year given a similar task of taking family law procedures by the scruff of the neck south of the Border, had visited Scotland to compare notes. “Following that meeting it became apparent that it is at least possible that reform to family procedures in Scotland may be more straightforward than the equivalent reform process in England,” said Lord Brailsford.

In time, his lordship observed, he would like to see a single set of rules for both sheriff courts and the Court of Session.

The first changes to procedure emanating from the working group will insert new mechanisms into the ordinary cause rules and adoption rules. They set out the powers of a sheriff to drive case management.

The rules, Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2013, were laid before the Scottish Parliament on 2 May and will come into force on 3 June.