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IMPROVING FAMILY LAW IN SCOTLAND: ANALYSIS OF WRITTEN CONSULTATION RESPONSES

CHAPTER EIGHT MAKING THE LAW WORK IN PRACTICE

The consultation stated:

There are many dimensions to making the law work in practice and your views are sought on these. An information campaign will accompany changes in family law since a basic prerequisite for family law to be effective is that people understand their responsibilities and rights.

The consultation asked:

8.1 WHAT ARE YOUR VIEWS ON THE ISSUES TO BE COVERED IN INFORMATION ON FAMILY LAW AND HOW CAN THIS BEST BE DISSEMINATED?

Overall, 115 responses contained views on these issues.

A vast range of issues to be covered and ideas for dissemination were put forward. General views were that information should be available in "public places" (Indiv 10) and "social spaces" (Indiv 74). An emerging vision was for short term high profile information alerts to make people aware of the issues, with sign-posting to appropriate outlets for those who wished to follow-up on the details. However, a few respondents expressed concern at the likely costs of any media campaigns and their overall effectiveness. One view was that the idea of an information campaign may seem like a good idea in principle but people would really only be interested if the issues touched on their situation at that precise time. The respondent went on to suggest that an on-going campaign may be a more effective tool (Misc 326). Another view was that the public may be fed up with " so-called information" and yet a further information campaign would not be worthwhile (Indiv 311).

Issues to Be Covered in Information on Family Law

Many respondents identified what they viewed as the priority issues for future information to cover. Most frequently cited were:

• Family members' responsibilities and rights - a few respondents highlighted these particularly in relation to fathers and children
• Responsibilities and rights associated with cohabiting - one comment was that information should dispel the myth of the "common law marriage."

Other priority issues raised by respondents comprised:

• Where families can go to seek advice on disputes - one view was that information could serve to make mediation less stigmatising. Another was that agencies required to be well resourced in order to cope with any increase in workload following an information campaign.
• The needs of children and how to secure their happiness and welfare
• Children's and young peoples' rights and how to exercise them
• Changes to family law and the fact that these are not retrospective
• Court processes, their timescales and likely costs
• Availability of Legal Aid
• Parenting issues
• Financial issues
• Promotion of marriage
• Protection against domestic violence
• Using the law as a last resort
• Responsibilities and rights as they relate to LGBT families

Presentation of the Information

Respondents provided views on what the information should look like and how it should be presented. Ideas included:

Both easy to read pamphlets/leaflets and posters/stands were envisaged as suitable for conveying the information. A few respondents highlighted existing useful information which they considered could inform the design and content of any new materials:

• Lord Chancellor's Department leaflets for both parents and children (Indiv 81)
• Scottish Executive Civil Justice Webpages (Univ 122)
• Stepfamilies Scotland information (Char 187)

How Best Can the Information be Disseminated?

A great number of ideas were put forward as candidates for dissemination outlets. Most commonly cited were:

• TV adverts and information programmes
• Newspapers, local press and other media
• Internet
• Schools

In relation to the dissemination of information via schools, both a leafleting/poster campaign and the inclusion of family law issues in the school curriculum were envisaged. Some respondents suggested ages at which they considered that children should be taught about family law matters. These ranged from "at an early age" (Indiv 39), 13/14 years (Indiv 22) to "before 15 years" (Legal 190).

Less frequently cited, but still raised by many respondents were:

• GPs surgeries
• Libraries
• CABx
• Health visitors
• Voluntary organisations
• Freephone helpline

Finally, outlets suggested by one or a small number of respondents comprised:

• Solicitors offices
• Hospitals
• Registrar offices
• Social security offices
• Radio
• Local campaign groups
• Social Workers
• Health Centres
• Council Buildings
• Job Centres
• Places of worship
• Post Offices
• Supermarkets
• Bus adverts
• Train adverts
• Work places
• Children's Hearings
• Nurseries/playgroups
• Using peer groups trained to deliver and discuss relevant information
• When purchasing property
• Football programmes
• Sports centres
• TV/Radio Soaps

With regard to TV/Radio Soaps, one comment was that these would make a good "conduit" for information as their storyline would, according to the respondent, reach a much wider audience than any other method of dissemination (Indiv 333).

Another view was that much of the existing information tended to be aimed at women, and this could be redressed by targeting outlets frequented more by men such as car repair waiting rooms (Char 213).

The consultation stated:

A range of support is available for families in difficulties or transition such as mediation and counselling. We would be interested to know if consultees see ways in which the voluntary sector contribution to securing good outcomes for families can be strengthened; and in suggestions for further ways in which the complementary skills of counsellors and mediators can be mobilised locally to support families in transition.

Around 150 responses contained commentary of relevance to these issues. It was generally agreed that one positive outcome of strengthening the voluntary sector contribution would be to decrease the numbers of cases resulting in litigation. Many respondents appeared to subscribe to the vision of a " vibrant and properly funded" voluntary sector involvement (Legal 313).

Three themes dominated the responses:

• The need for more substantial, consistent and longer term funding for the relevant voluntary sector agencies

A significant body of respondents from across a variety of respondent sectors recommended that funding should be increased and targeted to better support agencies involved in helping families. One suggestion was to target resources on those agencies which had demonstrated positive long-term outcomes (Indiv 85); another was to core fund organisations with particular expertise (Couns 216, Couns 259). For one respondent, child centred services were a priority and should be funded as mainstream services rather than projects (Char 127). It was commented that secure funding made it easier for voluntary agencies to develop innovative collaborations (Univ 122).

It was noted by some that inconsistencies existed between different councils in levels of funding available for such voluntary agencies and calls were made for the provision of services on a statutory footing (LG 59, Indiv 82, Univ 122, Couns 276) or the ring fencing of local government funding for these services (Faith 171). Another approach raised was for central government rather than local authorities to provide direct funding (LG 50).

Aligned with these comments were those requesting that greater funding support be given to the training of volunteers (Indiv 148) especially for smaller voluntary organisations such as the Black and Minority Ethnic sector (Faith 171, LG 185).

• Funding for Reconciliation Services should be prioritised over funding for Mediation Services

A significant volume of responses, all from individual respondents, argued for the prioritisation of funding for reconciliation over mediation services. One suggestion was that money which the respondent perceived would be saved by fast-tracking divorces through mediation could be put to use in supporting reconciliation services (Indiv 98).

The comments of one respondent (Indiv 132) appeared to sum up much of the mood of these responses. It was argued that there is confusion between reconciliation and mediation with a modern concept being that the purpose of mediation " is to smooth the path to divorce and to sort out the financial settlement". Reconciliation, on the other hand was perceived as giving time to think and talk through difficulties.

• Services could be Better Integrated and more Comprehensive

Many respondents picked up on this theme, for example, it was argued that services needed to develop from the outset in a more coherent fashion (Char 127). The current patchy coverage of provision in some areas needed to be addressed (Indiv 85, Legal 150, FM 194) and a consistency created between national and local approaches (Char 127). Greater co-operation between agencies was called for (Indiv 157) with the ethos of working together promoted (Faith 163). It was considered that services could be co-located to promote co-ordinated working (LG 133) with one difficulty identified as the agreement of common aims and understanding (Indiv 157). Co-ordinated working was perceived as getting better value for money from different agencies (Couns 124).

A few respondents highlighted as beneficial having only one initial "port of call" for a client - a visible and accessible first point of contact with properly trained staff (FM 161, FM 194). It was recommended that the "one stop shop" access arrangement be piloted (FM 91) and associated with a common brand/identity of family support services (Indiv 88).

Respondents urged that good practice in integrating services be identified and shared (Char 127, Faith 163). An audit of existing services was recommended to help reduce duplication of effort and address gaps in the representation of services (Pol 104).

Examples of attempts at integrated working were provided by respondents. One described how co-ordinated services were already available locally and involved shared gateways, publicity, information and premises (Couns 259). Another reported that they had already convened a local forum with mediation and marriage care services with opportunities for joint working and collaboration (Couns 276). Also highlighted was the potential role of the current "Scotland's Families" consortium in facilitating a more cohesive provision of services (Indiv 131).

Ideas for future initiatives to promote greater co-ordination of existing services were, firstly, a recommendation for the establishment of a new forum, launched by a conference with a remit to consider how best sharing and supporting could be taken forward (Faith 163); and secondly, the need for a new, fully integrated Family Court and Family Mediation and support service which would contain elements of the sheriff court procedure, Children's Hearing System, Family Mediation service and be linked to Social Work services, the health and voluntary sectors (Char 321).

Other Comments Regarding Strengthening Voluntary Sector Contributions

Training of Volunteers

Several respondents identified what they saw as the need for better accreditation and qualification systems for volunteers (Indiv 4, Indiv 46, Indiv 57, Indiv 137, Indiv 331). Some held a concern regarding the competency of some volunteers (Indiv 46, Indiv 57) with others suggesting the introduction of national standards and quality control to apply to volunteers and voluntary agencies (LG 50, Indiv 57, LG 133). It was suggested that periodic external evaluations of relevant agencies would contribute to maintaining standards (FM 194).

One idea for using trained and accredited volunteers efficiently was to develop a "skills bank" from which agencies could seek input as required (LG 185). A call was made for greater standardisation of the pay and conditions for Family Mediation employees and in mediator agreements and contracts (FM 194).

A further suggestion was to consult with clients on what sort of skills and competencies they thought that a volunteer should acquire and how best these should be packaged (Mist 124).

A few respondents urged that people with real, first hand experience of family dispute issues should be encouraged to train as volunteers (Indiv 22, Indiv 53, Indiv 116). One comment was that groups, such as Families Need Fathers are often much more helpful than professional counsellors on account of their in-depth experience of the issues (Indiv 53).

Earlier and More Routine Intervention

Many respondents considered that earlier involvement of voluntary agencies in family disputes could maximise their effectiveness in addressing the issues. Indeed, the notion of families in "transition" was disputed by 2 respondents (Legal 313, Faith 322) who argued that "transition" appeared to presume the subsequent breakdown whereas timely intervention may prevent this from happening.

A call was made for other professionals to accept the contribution which the voluntary sector could make (Char 277) with greater encouragement needed to ensure solicitors referred cases to voluntary agencies in the early stages of disputes (Indiv 10, FM 161).

Again, recommendations were for greater publicity of voluntary services (Indiv 18, Indiv 76, Misc 326). Suggestions were made for mediation to be free at least for one initial meeting (Indiv 12, Indiv 81) and counselling and mediation services to be made more accessible and affordable (Misc 54).

A recurring theme was for mediation and/or counselling to be made a more formal and routine step in the process between dispute and possible divorce (Indiv 15, Indiv 36, Indiv 45, Indiv 135, Indiv 146, Misc 164, Indiv 226, Faith 322).

Several respondents highlighted what they perceived to be the important role that churches and ministers could play in supporting families in dispute (Faith 93, Faith 114, Faith 162) particularly in view of their good local knowledge of families (Indiv 176).

More Localised Services

Very few comments addressed this issue directly. It was considered that local development needs in this regard should be considered within the Children's Services Planning arrangements (Char 319). An innovative idea was proposed for mobile voluntary services to visit GP surgeries, health centres and schools in areas currently poorly represented (Indiv 215). Finally, it was suggested that a national helpline could go some way to assisting those without access to face-to-face support (FM 161, Char 187, FM 194).

The consultation stated:

When people do have cause to interact with the law, we believe that legal remedy should be accessible and easy to comprehend.

The consultation asked:

8.2 WE WOULD BE INTERESTED IN HEARING CONSULTEES' EXPERIENCE OF USING THE LAW IN RELATION TO FAMILY MATTERS AND IDEAS FOR IMPROVEMENTS WHICH CAN BE MADE

It total 64 responses contained commentary of relevance. These included responses from individuals whose own cases had proceeded through courts and those of professionals and voluntary agencies who had experienced involvement from their respective perspectives.

The most commonly raised issue concerned the cost of taking cases to court with many viewing these as high (Indiv 31, Indiv 60, Indiv 76, Indiv 81, Char 144, Char 213). The legal system was accused of being "profit motivated" (Indiv 27) with solicitors perceived as having a financial incentive to drag proceedings out (Indiv 1, LG 56). It was argued that people on relatively modest incomes were hardest hit by court costs as they were unlikely to qualify for Legal Aid (Indiv 60). Comments included:

" there is no doubt in my mind that many people are put off going to court about family matters because of the costs" (Indiv 60)

" I, like a small percentage (of people) fell at the final hurdle....because of the cost" (Indiv 1)

Calls were made for Legal Aid to be made more widely available (Indiv 60, LA 133 - " on a sliding scale", Misc 220, Indiv 331). Without broadening access it was suggested that some people were being prevented from exercising their rights in court (Misc 220) and the poor, who would be granted Legal Aid, were placed in a position of being legally more powerful than others (Indiv 331).

Another recurring theme was that the adversarial nature of the legal system was unhelpful to those seeking positive outcomes in divorce cases (Indiv 1, Indiv 20, Indiv 27, Indiv 81, Univ 122, Indiv 135, Faith 162, Faith 163, LG 324). One comment was that the current system set the scene for a "contest" between people (Indiv 1) and made the situation overly confrontational (Faith 163). Two respondents suggested that the adversarial nature of proceedings encouraged perceptions of winners and losers (Univ 122, Indiv 135).

In addition to being considered costly, some respondents saw the court process as too lengthy (Indiv 1, Indiv 23, Indiv 34, Indiv 36, Indiv 40, Indiv 81, LG 133 - should be a deadline for finishing a case, Char 144, LG 324). Another criticism was that terminology used in court was outdated, baffling and inappropriate for dealing with the lives of ordinary people (Indiv 34, Indiv 44, Indiv 51, Misc 54, Indiv 51, Couns 100, Couns 216, Indiv 252). It was remarked that the court jargon was particularly challenging for anyone unable to afford a professional lawyer and therefore representing themselves (Indiv 44). One typical comment was:

" the man in the street should be able to understand everything without having to understand outdated terminology" (Indiv 57)

Related to these views were those of respondents who expressed a wish for courts to become more user friendly (Indiv 34, Misc 54, Char 206) and brought up to date (Indiv 42, Indiv 57). It was remarked that court could be a totally overwhelming experience for children with the court dress, style and language not conducive to creating a mood of support. It was argued that:

" respect for the law can be maintained without all the present pomp and ceremony" (Misc 54)

Again, recommendations were made for the establishment of separate family courts, worked by specialist sheriffs trained in family matters or a panel of trained and experienced volunteers (LG 63, Char 71, Misc 326) perhaps building on aspects of the Children's Hearing system (Faith 318). Calls were made for specialised training of sheriffs (Indiv 333) and other relevant professionals (Couns 100, Char 277).

Lawyers came under criticism as often being out of step with the wishes of their clients (Indiv 10, Indiv 27, Indiv 157) and on occasions making things worse by " adding fuel to the fire" (Indiv 10). A complaint was that there was a tendency for the more inexperienced lawyers within law firms to attend to cases (Char 184). For some, apparently simple matters became much more complicated once in the hands of lawyers (Indiv 20, Indiv 22).

A few respondents considered that children were disadvantaged in that it was difficult for them to enforce their rights through court without having an adult to represent their views (Indiv 16, LG 133). Another concern was that courts were not good at obtaining children's views (LG 59) and that, on occasions, it seemed as though children were being used as negotiable items in establishing divorce settlements (Faith 163).

A perceived lack of enforcement of court orders came under criticism (Indiv 22, Faith 71, Char 144, Legal 150, Char 213). This was seen as making " a mockery of the system" with a recommendation that court orders should be made " legally and socially unacceptable" (Char 213). Another comment was that contact orders for grandparents were " not worth the paper they were written on" (Char 71).

Claims were made that the outcomes of cases were often inconsistent and too dependent on the decision of "one man" (Indiv 18, Indiv 42, Indiv 81). A bias in outcome was perceived in favour of the parent currently living with the child (Indiv 20) with anecdotal evidence cited of bias against fathers (Char 213).

One respondent summed up many of the views of others in requesting a system that is:

" accessible, dependable, consistent, understandable and affordable to all who need it" (LG 133)

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