In the majority of sheriff court actions, disputes concerning orders for parental rights and responsibilities under the Children (Scotland) Act 1995 can be resolved at child welfare hearings. In addition to encouraging “expeditious resolution” within that forum, the Ordinary Cause Rules provide several other means (instruction of reports, referral to mediation, attendance of parties at options hearings etc) to assist in efficient disposal.

Proofs in actions seeking s 11 orders are often regarded as a last resort, and by contrast there is little formal provision, other than the standard OCR rules (Chapter 29) and the application of the Vulnerable Witnesses (Scotland) Act 2004, regulating their conduct. The Inner House had cause to consider this recently in B v G [2010] CSIH 83; 2010 Fam LR 134, an appeal following a lengthy and fiercely contested proof at Stirling Sheriff Court.

Intractable dispute

The proof, which dealt with contact only, was conducted by counsel for both parties, and the curator ad litem to the child (who had been sisted as a party). There were 52 days of evidence (plus two of legal argument), spanning a 15-month period and about 6,000 pages. In addition to the parties, witnesses included a court-appointed consultant psychologist, a chartered psychologist instructed by the child’s mother, and the solicitor who prepared a bar report, plus the curator himself.

The sheriff granted the mother’s minute to reduce the father’s contact to their 10-year-old son to nil. In his 119-page judgment (Scottish Courts website version), he frequently criticised both the parties and their counsel (being particularly disparaging of the contribution which the expert witnesses could have been expected to make), and described the litigation as “redolent of tension, contention, bitterness, hatred and bile”. The father appealed.

The Inner House held that having regard to the sheriff’s unchallenged findings of fact, he was entitled to withdraw contact. The court rejected criticisms that the sheriff acted unjudicially for his forthright comments concerning the parties and their representatives.

Professional responsibilities

The Inner House was, however, critical of the length and cost of the proof. The mother’s presence in the witness box for 37 days, and the father’s for seven, was specifically referred to as “unsatisfactory”, and the Lord President’s judgment highlights the estimated £1 million cost (excluding judicial costs) of the proceedings. The court did not comment on each of the specific criticisms made by the sheriff on the conduct of the proof and the parties. However, on the general issue of how proofs dealing with the welfare of children should be conducted, it was clear: “The primary responsibility for achieving [an expeditious] disposal lies with the parties’… solicitors and counsel”.

The professional duty is put thus: “to take steps to identify and concentrate on, and only on, the issue – the welfare of the subject child or children…. a duty not only to their clients and to the court, but also in cases of this kind, to the subject child or children. Performance of that duty means that every measure to reach an expedited but right disposal should be taken”.

This proof undoubtedly highlights flaws in the current system. The court suggests that practice notes in relation to a wider class of case involving the welfare of children might assist. These notes, issued by sheriffs principal, have been used successfully to provide for efficient management of proceedings under the Adoption and Children (Scotland) Act 2007. Duties are imposed on the court to ensure that applications are dealt with as efficiently as possible, and useful guidance is set out for practitioners on issues such as pre-proof hearings, evidence, expert witnesses and proof diets themselves.

The current rules and procedures regulating actions for s 11 orders generally operate satisfactorily in creating a framework which encourages and facilitates resolution without recourse to an evidential hearing. They are, however, lacking where proof is still required. In B v G, during the five years between the raising of the action and the proof, at least 21 child welfare hearings were assigned. Practitioners clearly have a duty to utilise the various available means to achieve resolution without proof, but we must also identify those cases where proof may be inevitable, and, as highlighted by the Inner House, do what we can to ensure that diets take place with minimum delay and are conducted expeditiously. These responsibilities, however, can only be discharged successfully with judicial co-operation. Practice notes which extend these duties to, and encourage a more dynamic approach from, the bench are to be welcomed. Children the subject of litigation deserve no less.