- Jonathan Mitchell QC - http://www.jonathanmitchell.info -

FLaG: debate on 22 September on child contact issues

Scots Law has no effective means of dealing with mothers who will not allow contact‘ was the subject of the debate at the Murray Stable’s launch of its Family Law Group (‘FLaG’) [1] on 22 September. I have to say I was – although I spoke against it- not surprised at the thumping majority which voted in favour of the motion, in a vote which was particularly striking as this highly successful event attracted almost every significant practitioner in family law in Edinburgh together with family lawyers from all over Scotland.

There’s a description of the debate on the Murray Stable newspage [2], and also a handout with notes of cases and other materials [3]. Unfortunately the handout’s hyperlinks don’t work, so I give its final part here with working links.

This was a topical subject, given the Scottish Parliament’s intelligent and constructive debate on Family Law Disputes on 11 September 2008 [4]; the motion then debated was ‘That the Parliament recognises that current arrangements for settling family law disputes could be improved and that current law still discriminates against parents who are not married; notes that parents can find it difficult or impossible to enforce contact orders where the other parent is unco-operative and that disputes where broken families live in more than one jurisdiction within the United Kingdom are unnecessarily difficult to resolve; further notes that these issues are particularly relevant due to recent cases in the north east; encourages current moves by Scotland’s legal profession towards collaborative dispute resolution, and notes with interest the new system of less adversarial trials being developed in Australia.’

That debate is not the only recent discussion of these issues at Holyrood. In its report leading to the introduction of the Family Law (Scotland) Act 2006 [5], the Justice 1 Committee concluded (see paragraphs 132 to 140 and references in footnotes) ‘there are no easy solutions to this problem – the Committee is not aware that any jurisdiction has been able to find an effective enforcement mechanism in those cases‘.

The Westminster Parliament debated the difficulties of cross-border contact on 4 December 2007 [6]. The complacency and self-satisfaction of the governmental reply on that occasion may be unfavourably compared to Holyrood.

The survey of sheriff clerks’ perspectives on child contact enforcement in Scottish sheriff courts [7] referred to, which found little evidence of any widespread problems in practice, is criticised here [8]. See also this study into cases where difficulties in contact followed allegations of abuse [9], which are, as Sarah Erskine and others pointed out at the seminar, often genuine and serious.

For an international comparison, see this review into mechanisms for enforcing contact orders in different jurisdictions [10].

The final links in the handout were to some papers from the Ministry of Justice in England.  ‘Courts do not treat non-resident parents unfairly – report [11]’ and ‘Outcomes of applications to court for contact orders after parental separation or divorce [12]’ may not easily translate into Scotland, given differences in the law and legal practice, but the report on how ‘Conciliation in court helps parents agree over child contact and residence [13]’ (potted version here [14]) is useful and makes points emphasised by several speakers at the seminar.

Share [15]