Scottish Government

CONTACT APPLICATIONS INVOLVING ALLEGATIONS OF DOMESTIC ABUSE: FEASIBILITY STUDY

CHAPTER FIVE SELECTING COURT RECORDS

INTRODUCTION

5.1 This chapter looks in detail at data collected from court records. Data sources and the limitations of the data are covered. Gaps in information are highlighted.

DATA SOURCES

5.2 Two sources of data have been used in this part of the study: court records and interviews with court staff. Where possible data have been triangulated. Information from court records was recorded on a template and keyed into a database for analysis.

INFORMATION OBTAINABLE FROM COURT RECORDS

5.3 Reports by curators and solicitors alongside the initial writ were the most useful sources of information on families. Factual information on parties, craves and children was gathered from initial writs. Reports and affidavits contained detailed information on all matters pertinent to parties, including domestic abuse and children's views. Close reading of each report was required, however, and this was time consuming, particularly in complex cases.

5.4 Many cases were sisted to ?monitor contact? and therefore information on final decisions was incomplete. There was variation in the amount and detail of information contained in court records. One sheriff had written a detailed account of the reasons why certain decisions had been made but in the main these were not recorded in processes.

5.5 Assessing the weight given to parties' statements or children's views could be gleaned from the recommendations given in curator and solicitors reports and from proofs. In a few instances children's letters were in files: not all were sealed. Recommendations can be weighed against final outcomes in some cases, but not all. Although very few cases went to proof, in all cases where there were concerns about children's well-being, courts appointed curators or solicitors to investigate such concerns.

5.6 There was little information on decisions reached at or before CWHs and little on the contents of Joint Minutes of Agreement. The reasoning behind decisions could, in some cases, be deduced from reports.

5.7 Trying to establish why a case was undefended was not straightforward. Many Intention to Defend notices were lodged but often cases proceeded unopposed. Some assumptions could be made about the inability to access legal aid inhibiting the defence of an action, however this was outwith the scope of the current study. In some instances non appearance of a defender or pursuer was noted in files but few other reasons were given for a case proceeding unopposed.

RECORD AVAILABILITY

5.8 Availability of records is important. Disposed cases are more likely to be available than those that are active. When cases are still active processes can be with parties' solicitors. According to court staff, if a case is undefended then it could take some time before papers are returned to courts. In one court more than half the records we wanted to look at were not available and others had to be selected.

5.9 Court clerks did give advice on which years would be most complete and this was helpful. Should a fuller study be considered, examination of disposed cases is recommended.

5.10 Time should be built in also for selecting and re-filing court records. In 2 of the courts studied, records were selected in advance and re-filed for us by court staff. This saved considerable time, allowing more records to be scrutinized in a given period. On average one researcher could scrutinize 15-20 records in one day.

LIMITATIONS OF THE DATA

5.11 A feasibility study is by definition exploratory and an ability to adapt to the reality of available data is often called for. In this study, selecting records using different means was necessary. This placed some limitations on the data set and some caution is needed when interpreting tables. The data is not homogenous and comparison among courts is not comparing like with like.

5.12 That said, we are able to answer confidently the main research questions posed. Information from interviews confirmed many of the findings from court records. Data from records was both rich and revealing and responses from those interviewed proved informative. The tables which follow in later chapters illustrate this well.

IDENTIFYING CONTACT APPLICATION RECORDS

Introduction

5.13 To establish if contact applications could be identified, a short questionnaire was prepared for sheriff court clerks in our sample courts. This we hoped would provide insight into the way in which individual courts record and process applications for contact.

How courts record cases where contact may be sought

5.14 It had already been established that contact applications were recorded and stored in different ways within the CMS database.

5.15 It may be useful to use the analogy of a filing cabinet to explain how records are stored. There are 11 Action Types in the CMS database: these may be thought of as the drawers of the filing cabinet. Of these 11, only two Action types (drawers) are used where contact is being applied for: Family Actions and Ordinary Actions. To continue the analogy, within each drawer are pockets where records are stored. These are known as Case Types.

5.16 Within Family Actions there are, amongst others, the following Case Types of interest to us. Court clerks suggested that contact applications were likely to be found in these 6 Case Types:

• Contact
• Declarator of Paternity
• Divorce
• Interdict
• Parental Rights & Responsibilities
• Residence

5.17 Within Ordinary Actions, the following Case Types were looked at.

• Contact
• Declarator of Paternity
• Interdict
• Parental Rights & Responsibilities
• Residence

5.18 Each case where contact is being sought will be stored in one, and only one, of the above Case Types. At first glance the obvious one would be Contact, preferably in the Family Action "drawer". Many actions, however, have multiple craves and they are usually stored in the Case Type relating to the first crave. Because of this, and depending upon the court visited, cases involving contact may be found in any of the above 11 separate Case Types.

5.19 Glasgow Sheriff Court records all of such cases involving children within Family Actions and in the most relevant of the 6 Case Types shown. Many contact cases in Dundee Sheriff Court were found in Ordinary Actions within the Contact or other Case Type. However, these were also stored in Family Actions within either its Contact or Divorce Case Type.

5.20 Dumfries Sheriff Court stored most contact cases within one of the 6 Case Types in Family Actions. But cases involving children could also be stored in Ordinary Actions in the Interdict Case Type.

5.21 The way in which contact cases were recorded by courts was explained by court staff.

"A divorce crave will be identified, but the other craves noted will depend on who inputs the data on CMS. There is no standard entry format for inputting data. If contact is not recorded in the first instance but becomes an issue later, there is no way it can be recorded in CMS. You need to look through processes."

5.22 On identifying actions involving children:

"Children will only be identified if there is a specific crave involving children. Otherwise they are not noted in the system. There will be intimation of child but only if the crave is for residence or contact. Children will not necessarily be identified in divorce actions. It is only through looking at individual processes that they can be identified. Cases where children are identified are in contact, residence, child protection, referrals, parental responsibility order."

How records were selected

5.23 An initial examination of court files revealed a greater number of contact cases than were stored in the contact category. The number of records recorded in the contact case type in CMS by courts were:

• Dumfries 1
• Dundee 24
• Glasgow 98

5.24 Using CMS, all Ordinary Action and Family Action records were searched in Dundee and Dumfries to identify cases where contact had been included in craves. This was not a full-proof system since there was no standardised method of entering data relating to craves into CMS and no guarantee that all craves had been recorded. A manual search of CMS printouts allowed identification of relevant records.

5.25 The resultant search produced 60 cases where contact had been craved in Dundee and 14 in Dumfries. The following table illustrates the before and after picture.

Table 1 Number of contact cases found by searches

5.26 A manual search produced approximately 2.5 times as many contact cases in Dundee Sheriff Court than were recorded in the contact category. The difference is greater for Dumfries. This confirmed what court staff had said - that contact applications could be found across a range of case types - and went some way to answering the first research question.

Court Samples

5.27 After discussion with court staff a search for appropriate records was carried out for a 12 month period in each court.

5.28 In Glasgow Sheriff Court 50 court files, selected by court staff, were examined and 31 were found to contain sufficient information for this study. A further 33 files were examined to allow annual contact application rates to be estimated.

5.29 In Dundee Sheriff Court CMS printouts were used to select initial records. However many were active files and not available in the stacks for examination. After searching a total of 55 files, 27 were found suitable for scrutiny.

5.30 In Dumfries Sheriff Court CMS printouts provided by staff were scrutinised and out of 49 files requested, 32 of these were appropriate for analysis.

5.31 In total 154 court records were examined and 90 were found to be relevant to the study. An additional 33 files were used to estimate annual contact application rates throughout Scotland.

ESTIMATING THE NUMBER OF CONTACT APPLICATIONS

5.32 Findings from our preliminary searches were revealing and brought a robustness to estimations made on the overall number of contact cases. Estimates were made using information from two courts - Dundee and Glasgow.

5.33 A 1 in 40 sample of cases was taken from all Family Action records in Glasgow for 2002. The cases selected were scrutinized to identify records where contact had been craved. A 1 in 40 sample of all Family Actions (1265 ) produced 33 cases. Of those, 8 related to contact. The latter gives a projection of 306 contact cases, or just under 1 in 4 of all Family Actions. This figure is not unrealistic given the findings illustrated in.

5.34 In addition, court staff estimated the number of contact applications in Dundee court at 2 per week or 104 per year.

5.35 The population of Glasgow and Strathkelvin Sheriff Court is around 800,000. Projected numbers for contact applications are 306 for Glasgow Sheriff Court and between
80-104 in Dundee. Using these figures it is estimated that the numbers for contact applications made in Scotland in one calendar year are likely to be around 2000.

CONCLUSION

5.36 Many contact cases are not recorded in contact categories: contact applications can be found in a range of Case Types in both Family Actions and Ordinary Actions. CMS searches are useful in identifying some cases but since recording of information is not standardised, not all will be picked up. Sufficient information is not available, therefore, to identify contact application cases on a systematic basis. Records can only be fully identified if a manual search is carried out.

5.37 Estimates of total contact applications have been made. Using population figures from Glasgow and annual estimates for Dundee, total annual contact applications in Scotland are estimated to be around 2000.

5.38 Understanding the manner in which individual courts record and store their records is necessary for future research so that appropriate records can be identified and extracted for analysis. Some knowledge of CMS would also prove useful.