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«Karen Laing Graeme Wilson Newcastle University Scottish Government Social Research This report is available on the Scottish Government Social ...»

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Understanding Child

Crime and Justice: Civil Justice

Contact Cases in Scottish

Sheriff Courts

UNDERSTANDING CHILD CONTACT CASES

IN SCOTTISH SHERIFF COURTS

Karen Laing

Graeme Wilson

Newcastle University

Scottish Government Social Research

This report is available on the Scottish Government Social Research website

only www.scotland.gov.uk/socialresearch.

The views expressed in this report are those of the researcher and do not necessarily represent those of the Scottish Government or Scottish Ministers.

© Crown Copyright 2010 Limited extracts from the text may be produced provided the source is acknowledged. For more extensive reproduction, please contact the Queens Printers of Scotland, Admail, ADM 4058, Edinburgh EH1 1NG. Email: licensing@oqps.gov.uk

TABLE OF CONTENTS

EXECUTIVE SUMMARY 1

Background 1 Aims and objectives 1 Research methods 1 Main findings 1 Conclusions 3

1 MAKING ARRANGEMENTS FOR CONTACT 4

The policy context in Scotland 5 Parenting after separation 8 Using the courts to make contact arrangements 11 Involving children in making contact arrangements 12 Involving children in legal proceedings 13 Contact actions in Scotland 13 Summary 14 The structure of this report 15

2 RESEARCHING CHILD CONTACT CASES IN SHERIFF COURTS 17

Our approach to the study 17 Quantitative research methods 17 Qualitative research methods 21 Caveats of the research 24 Summary 25 3 STARTING COURT ACTION 26 Background to child contact cases 26 Expectations of court action 37 Summary 41

4 CHILD WELFARE HEARINGS IN ACTION 43

Perceptions of court staff 43 Sheriffs’ interaction with parties 47 How parties have their say 48 CWHs as a process not an event

–  –  –

FIGURE 3.2 Perceived quality of communication between pursuers and children at 30 the beginning of court action for contact or divorce

–  –  –

The authors would like to thank all those that made this research possible. We are indebted to the Scottish Government Justice Directorate, the Scottish Court Service, and the Scottish Legal Aid Board for enabling the research to take place. We are also grateful for the advice and challenge provided by the Research Advisory Group.

We would not have been able to conduct this research if it had not been for the enthusiasm and commitment of the Sheriff Courts, and some 400 law firms that use them. We are sincerely grateful for all those who supported the research.

Thanks also are due to Professor Janet Walker who acted as expert consultant to the study and was able to share her extensive expertise in the area, Janette Pounder and Jane Tilbrook, who provided us with valuable secretarial support, and Michael Ayton, who edited earlier drafts of the report. Thanks go, also, to David and Jane Bradley for their involvement in the planning and execution of this research.

Last, but by no means least, we would like to thank all those people who lodged a contact case in court, and agreed to participate in our research. Without their willingness to be open about their experiences, we would not have been able to produce this report.

GLOSSARY

Definitions are provided below of some of the legal terms and acronyms used in the report. These definitions draw on the ‘Glossary Of The More Common Scottish Legal Terms’ provided on the website of the Scottish Courts at: http://www.scotcourts.gov.uk/library/publications/docs/glossary.pdf

–  –  –

Background

1. The Scottish court system for dealing with child contact disputes aims to place children at the centre of decisions that affect them and encourages agreed solutions that support children’s general welfare. In 2006, researchers at Newcastle University were commissioned by the Scottish Government to conduct a study investigating the nature and impact of sheriff court actions in Scotland in respect of contact with children.

Aims and objectives

2. This study aimed to increase understanding of the Scottish court procedure for dealing with child contact cases, examining how it is perceived by legal professionals and how it meets the expectations of those who initiate court

action. The objectives were to examine:

the number and type of contested contact cases in Scottish sheriff courts • the characteristics of parents and children involved in contact disputes • being resolved through court action the processes involved in court action in respect of child contact • pursuers’ reasons for undertaking court action, their previous attempts at • resolution, their use of support services and the outcomes they desired the role of child welfare hearings (CWHs) in relation to other court action • whether the views of children and young people are considered by courts • and parents, and if so in what way

Research methods

3. We adopted a mixed-methods approach which included: analysis of court data on cases involving a crave for contact; a postal survey, at two points in time, of individuals undertaking contact actions and/or divorce actions involving children; a survey of family solicitors; in-depth telephone interviews, in two waves, with a sample of pursuers in contact actions; observations of CWHs; and face-to-face interviews with sheriffs and sheriff clerks.





Main findings

4. The main findings from the study can be summarised as follows:

1. 901 primary craves brought before Sheriff courts in three Sheriffdoms over a fourteen month period were about contact. Pursuers of contact craves were predominantly non-resident and predominantly fathers.

2. Seventy per cent of pursuers with contact issues had had some level of recent contact with their child or children at the start of the action.

Pursuers reported difficulties in communication between parents, and primarily sought increased contact or a better arrangement regarding contact with the children involved. Seventeen per cent of pursuers, however, did not anticipate that they would achieve a successful outcome to their court action.

3. More than half of pursuers reported that they experienced moderate or severe stress as they undertook the contact action. This stress was most severe for those whose communication with the other party was the poorest. Those pursuing contact reported significantly poorer communication with the other parent than those pursuing divorce, and higher levels of stress arising from their contact problems.

4. Pursuers often described court action as a fight. They expressed a wish to see justice done, or to achieve parity between the parents in the allocation of contact, or to demonstrate that they had done the right thing in going to court. Few pursuers had sought help or advice from services other than their solicitor.

5. Sheriffs and sheriff clerks endorsed CWHs as a mechanism which enabled sheriffs to address parties directly and hear their voices, and which allowed incremental change towards resolution. Most pursuers (81%) felt prepared for attending a CWH, but 70 per cent were nervous during the hearings. Some said that they did not feel party to agreements announced by solicitors in court. Pursuers reported a strong positive impact where the sheriff had spoken directly to them to explain their view, even if they disagreed with that view.

6. Half of pursuers did not speak during their CWH. This was because they did not wish to, because they felt they should not do so, or because their solicitor had instructed them not to. Fifty-seven per cent of the pursuers we surveyed who had spoken during their hearing felt that their views had been taken into account. In interviews, pursuers were extremely positive about having spoken in court.

7. Sheriffs discourage confrontation in court, emphasising shared outlooks, common goals, and a focus on children’s general welfare. Nevertheless, some pursuers continue to take an antagonistic approach to their case, particularly if allegations have been made of violence, abusive behaviour or mental health problems.

8. Almost all actions in respect of contact are dismissed or sisted without reaching a proof hearing, consistent with a non-adversarial approach and the principle of minimum intervention. Sheriffs and solicitors seek to promote conciliatory approaches and reach a compromise between parties. Pursuers in contact cases may see their involvement with their solicitor as a process of bargaining over contact.

9. Sheriffs can refer parties in contact cases to mediation, and they strongly endorse the use of contact centres, particularly where they have concerns about one party’s parenting skills or capacity. Pursuers using contact centres appreciated being able to see their children, but were anxious to be allowed unsupervised contact. Some pursuers regarded court-directed mediation as having been beneficial, but others did not.

10. During the court case the amount of contact generally increased for pursuers, and this increase was maintained. Most pursuers were satisfied with the results of the case, and levels of stress reduced significantly afterwards. Pursuers who maintained contact following the court case said their children were happier. Some parents realised that their original plans for contact had been impractical.

11. Pursuers were dissatisfied with the apparent unpredictability, cost, and delay to resolution of an open-ended sequence of CWHs. Some fathers resented what they viewed as an assumption that their parenting needed to be monitored.

12. The quality of communication between pursuer and defender had often improved following the court case, but some pursuers still expressed continued ill feelings towards defenders. Those pursuers whose cases were resolved with a court order felt more confident of lasting change than those who had reached an agreement without an order. Many pursuers were prepared to return to court if contact problems reemerged.

13. Fifty-four per cent of actions were still continuing after four or more months, and pursuers were anxious about how long they might run.

Many pursuers felt that cases that had been resolved had taken too long to resolve, but saw this as inevitable or unavoidable.

14. Few pursuers had told children about the court action, since they felt they were too young, or did not want to burden them, or thought the child had been told by someone else. Some parents were worried that they could be accused of pressuring their child(ren) if they discussed the court action with them.

15. A number of the mechanisms available to court staff in order to ascertain children’s views are not widely used. The most commonly used are court-ordered reports and the F9 form. Few children in contact actions are represented by a solicitor or talk to a sheriff in person. Some pursuers were concerned that reporters’ visits to observe home environments were too short to establish the child’s best interests fully.

Conclusions

5. The Scottish sheriff court system deals mainly with disputes over ongoing contact. Court action has the effect of increasing overall rates of contact. Most pursuers are satisfied with the outcomes and see them as sustainable, and experience a positive impact for themselves and their children.

6. Taking court action as a parent or grandparent in respect of contact with a child is an extraordinarily stressful undertaking. Those who do so see no other option, but often anticipate a conflict without being sure of achieving anything.

We have observed in Scottish sheriff courts, and in the accounts of pursuers, court staff and solicitors, a system which maintains a focus on children’s welfare in such disputes and which seeks to reassure families. In some instances the court process may become lengthy, and there may be more scope for the active inclusion of parties and children. It is, however, broadly endorsed as helping to resolve contact disputes to children’s benefit, and as bringing about meaningful change in the lives of separated families.

1 MAKING ARRANGEMENTS FOR CONTACT

1.1 In 2006, researchers at Newcastle University were commissioned by the Scottish Government to conduct a study investigating the nature and impact of court actions in Scotland in respect of contact with children. The study was carried out between 2007 and 2009, and this report details the background, methodology, findings and conclusions of that research.

1.2 All the research evidence points to the importance of children being able to develop and sustain a loving, stable relationship with both parents when their parents do not live together. Achieving this can be challenging for parents, particularly when their own couple relationship has broken down. The vast majority of parents are concerned to do the best for their children in these circumstances, but some, nevertheless, find it difficult to agree on arrangements for contact. If parents are unable to reach consensual agreements they may have to turn to the sheriff courts to resolve their disputes. Current Scottish legislation is aimed at putting children at the centre of decisions that affect them. Parents are encouraged to find acceptable solutions between themselves that support the welfare of their children, and to respect their children’s views. This system has been in operation for some years and it is timely to conduct research that considers the ways in which courts in Scotland deal with contact disputes.

1.3 This study aimed to increase understanding of the Scottish sheriff court procedure for dealing with child contact cases, examining how it is perceived by legal professionals and how it meets the expectations of those who initiate court action. Little research had previously been conducted that examined child contact in sheriff courts, and a wide-ranging set of objectives was needed to address the gaps in knowledge that existed. The objectives were to

examine:



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