Family Law: Case Law Round-Up 2011

Posted On: 22 November 2011

Author: Janys M Scott QC

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Janys M Scott QC presented a 'Case Law Round-up' of family law decisions over the last 12 months to the AGM and Conference of the Family Law Association on 19 November 2011. Below is her paper from this event.


Janys M Scott QC

Saturday morning family law

[1]  Thirty or so years ago family lawyers would have convened on a Saturday morning for court.  Family law was generally an occupation for junior members of the solicitors’ profession and inexperienced counsel. Ann Mitchell[1] recorded her observations of cases in1977/78. The following is an example of a proof which took place before Lord Kissen on 14 March 1978:

Counsel:           Was your marriage happy?
Answer:            No.
Counsel:           What caused it to be unhappy?
Answer:            He couldn’t work.
Counsel:           Did he give any reason?
Answer:            No, he was just lazy.
Counsel:           Was there any other reason that cause your marriage to be unhappy?
Answer:            He was always assaulting me.
Counsel:           Can you remember an occasion at Christmas 1975?
Answer:            I remember an argument, I don’t know what about.
Counsel:           Did he hit you?
Answer:            Yes.
Counsel:           Do you remember another occasion in March 1976?
Answer:            He assaulted me.
Counsel:           How did he assault you?
Answer:            He kicked and punched me.
Counsel:           How did that assault finish?
Answer:            I went back to him for a few months.
Counsel:           How was the marriage then?
Answer:            All right. 

That was one of the longer cases recorded. Few seem to have gone on for more than ten minutes. The names of counsel included Mr Macfadyen, Mr Stein and Miss Morrison.  Our elders on the bench are just old enough to remember those days. 

Economy and restraint

[2]  In more recent times family lawyers have clearly moved away from the brevity of the Saturday morning court and been subjected to certain judicial displeasure for the length of their cases. In B v G [2010] CSIH 83, 2011 SC 191, 2010 Fam LR 134 a father appealed the sheriff’s refusal of a contact order. The proof had lasted 52 days. The defender, who led at proof, and was the first witness was in the witness box for 18 of those days. Two days of legal argument were interposed in the middle of her evidence. She left the witness box on day 20 of the proof, 9 months after the case had commenced. The sheriff heard “expert” evidence. The pursuer gave evidence for 7 days. The cost of the proceedings were estimated at £1 million. The First Division had little sympathy with the appeal. They took the opportunity to express their dissatisfaction and to remind professional advisers of the need to reach an expeditious disposal, in the interests of the child or children. Proceedings may be emotionally charged, but there was a duty to take steps to identify and concentrate on, and only on, the issue, which is the welfare of the subject child or children. Exploration of every byway in the relationship between parents is to be avoided. Sheriffs were exonerated from blame for extended proceedings as all they can do is to rule on exceptions to questions or lines of evidence. There was a suggestion of practice notes and encouragement of the use of affidavits. It remains to be seen what the Supreme Court will make of this saga. 

[3]  An Extra Division took the opportunity to drive home the point in B v Authority Reporter for Edinburgh [2011] CSIH 39, 2011 Fam LR 96. That was a children’s referral proof where mother, father, child, safeguarder for the child and reporter all appeared. The proof lasted 40 days. On the last day of the evidence the parties entered into a joint minute, which conflicted with some of the evidence already led. The reporter, who had required to take over part way through the proof when a previous reporter fell ill, had not understood the effect of the Joint Minute and frankly accepted she should not have signed it. The sheriff made certain findings that were contrary to the terms of the Joint Minute and the parents and child appealed.  The Inner House were not amused. They indicated that Joint Minutes are designed to be used in advance of, or at an early stage in a proof, to avoid unnecessary expense and the inconvenience of calling witnesses to establish matters that are not in dispute. This Joint Minute was designed to deal with the evidence of the child, and that should have been addressed before the hearing commenced. The Court favoured the introduction of rules to expedite hearings.  Some recognition of the difficulties is reflected at the end of the opinion, where it is suggested that the Scottish Legal Aid Board might wish to review the rules for payment of fees to encourage agreement of evidence and discourage prolongation of proofs. This reflects an increasing focus on case planning and strategy in family law.   

[1] Author of Children in the Middle: Living through Divorce 1985.

(Continued...for full paper please click on the link at the top of the page.)