The 17th century French satirist Jean de La Bruyère advised, “Avoid lawsuits beyond all things; they pervert your conscience, impair your health, and dissipate your property.” Doubtless, he would have had something equally pithy to say about ss 23 and 24 of the Children (Scotland) Act 2020, which seek to promote the use of alternative dispute resolution (ADR) in family disputes over the arrangements for the care of children – that is, where an order under s 11(1) of the Children (Scotland) Act 1995 is being considered.
Section 23 is in the nature of a “carrot”, since it requires the Scottish ministers to make funding available to meet the cost of ADR in certain s 11 disputes, either by setting up an independent scheme for that purpose or by arranging for provision from the legal aid fund. ADR is not defined, but ADR techniques only qualify for funding if they ensure that account is taken of the relevant child’s views to at least the same extent as would be required of a court in reaching a decision (s 23(5)). Access to funding may be subject to eligibility criteria, which must be no more onerous than those for civil legal aid (s 23(3) and (4)). The financial eligibility criteria for legal aid are hardly generous, but this provision is to be welcomed in so far as it will permit some people to choose ADR when cost might have presented a barrier.
Section 24 is rather less benign, and has a distinct air of the “stick” about it. It obliges ministers to set up a time-limited pilot scheme under which the parties to a s 11(1) dispute will be required to attend a mandatory alternative dispute resolution meeting where the options available to resolve the dispute will be explained to them. Given the popularity of acronyms, the meetings are likely to be known as “MADRMs”.
Where there is “a proven or alleged history of abuse between some or all of the parties”, they are exempt from attending such a meeting (s 24(2)(b)). That an allegation of abuse is enough may raise some eyebrows but, bearing in mind that much domestic abuse goes unreported, it would be unduly onerous to require a victim to produce details of a police report or evidence of a conviction in order to avoid participating in a MADRM. Of greater concern is the fact that some abuse victims, particularly those who have experienced coercive control, do not self-identify as victims.
There is a second possible route to exemption from the MADRM requirement, since the Act provides that if the scheme allows, the court may, on cause shown, determine that it would not be appropriate to require the parties to attend such a meeting (s 24(1)(b)). Effectively, ministers have been empowered to decide, by regulation, whether to afford the court this latitude. Happily, the preliminary plans for the pilot project suggest they will, and the plans also make provision for the parties attending separate information sessions, and for virtual sessions.
Having heard about the ADR options, the parties will be free to litigate if that is their preference. That makes s 24 seem fairly benign: after all, what is the harm in simply hearing about what is available? There is the ethical point that people in the areas of Scotland selected for the pilot project will be forced to participate in what is, essentially, an experiment. Of far greater concern, however, is the fact that, as far as those required to attend a MADRM are concerned, the court “may only make an order” under s 11(1) where they do so (2020 Act, s 24(1), emphasis added). In short, if they do not participate in the experiment (and are not exempted), the court will not be able to deal with their – and their child’s – problem. We shall return to the full implications of that presently.
It is not unknown for provisions like ss 23 and 24 to languish unimplemented for years. For example, the Children’s Hearings (Scotland) Act 2011, s 122, making provision for a children’s advocacy service, was not brought into force until late in 2020. To ensure they do not suffer that fate, each section contains a requirement designed to raise its profile and give ministers an incentive to move things along. Until they have carried out their obligations under each provision, ministers must report to the Scottish Parliament, every six months, providing an explanation for the delay and indicating when they expect to fulfil their duties (ss 23(7) and (8), and 24(4) and (5)). Once they have taken the necessary steps, ministers must report to the Parliament on the details of implementation and how the pilot project will be evaluated (ss 23(6) and 24(3)).
Ministers’ first report to the Parliament (23 March 2021) indicated that delays in carrying out their duties had been due to the need to prioritise dealing with COVID-19, and more time would be required in order to implement each scheme. One benefit of that report is that it sets out preliminary plans for how the pilot scheme under s 24 might operate, and indicates that ministers are consulting various stakeholders. Thus, there is still an opportunity for readers to have an input.
Readers may have noted a resemblance between s 24 and the provision in England & Wales for mandatory family mediation information and assessment meetings (“MIAMs”): Children and Families Act 2014, s 10(1). It is fair to say these have not been a resounding success: A Moore and S Brookes, “MIAMs: a worthy idea, failing in delivery” 2018 Private Client Business 32. The two are, however, very different, with MIAMS applying to all “family proceedings” (as defined in the Family Courts Act 2003, s 75) and emphasising mediation. MADRMs are confined to s 11 cases and are supposed to explore all the options for dispute resolution. Also, legal aid is no longer available for most family proceedings in England & Wales.
Litigation and ADR
It is not the purpose of this comment to explore the respective merits of litigation and ADR, since each has a place in appropriate cases. Nonetheless, it is familiar territory that litigation of disputes over children has been criticised as being too slow, too costly (to the public purse or to the parties), for taking up too much court time and for exacerbating acrimony between the parents, reducing the prospect of them co-operating in the future. ADR is often presented as the antidote to these problems.
Equally familiar are the criticisms of mediation in disputes over children: that it fails to protect domestic abuse victims adequately, and that the voice of the child whose future is at stake may go unheard. Similar criticisms are sometimes levelled at arbitration and the collaborative law approach. Other shortcomings are sometimes laid against either litigation or ADR, but that is the essence.
While the various ADR techniques share the common feature of “not being litigation”, they are very different in nature and what will work well for one family may be wholly unsuitable for another, hence the increasingly popular use of the term “appropriate dispute resolution”. All the forms of ADR currently available in Scotland are mentioned in the provisional plans for MADRMs: see the ministers’ first report at annex A.
Moving away from voluntarism
Hitherto, and subject to two discrete exceptions, participation in ADR in Scotland has been voluntary. The first exception is found in the power of the court to refer a dispute over parental responsibilities and rights to an accredited mediator (RCS, rule 49.23; OCR, rules 33.22 and 33.22A), which is exercised somewhat unevenly across the country. The second exception is more nuanced and applies only to cases where a party is applying for legal aid in respect of a dispute over children. The Scottish Legal Aid Board, in its guidance for cases involving disputes over children, requires the applicant to provide details of the efforts made to settle the dispute and, save in cases where domestic abuse is alleged, whether mediation has been considered or attempted and, if not, why not.
The climate of voluntarism in the use of ADR began to change, culminating in 2018 in the publication of a Justice Committee report, I won’t see you in court: alternative dispute resolution in Scotland, containing a section entitled, “Is it time for compulsory alternative dispute resolution?” In the event, it was not prepared to go that far – yet. Instead, it recommended that, “save in domestic abuse cases, mandatory dispute resolution information meetings should be piloted”. (It also recommended a range of other strategies designed to improve awareness and takeup of ADR, while ensuring that victims of domestic abuse, and children, are not put at risk.) The following year, Margaret Mitchell, then an MSP, lodged a proposal for a Mediation (Scotland) Bill, which would have compelled the parties to attend an information session to discuss using mediation.
Meanwhile, the Scottish Government was working on its Family Justice Modernisation Strategy, in which (at para 7.8) it expressed support for ADR, but made no mention of compelling attendance at meetings to discuss the options. While the Children (Scotland) Bill, as introduced, made no mention of ADR, it was amended at the final stage, resulting in ss 23 and 24 of the 2020 Act.
Fundamental flaw in s 24
The fundamental problem with s 24 is that, where the parties are required to participate in the pilot scheme (i.e. they are not exempt) and one or both of them fails to attend a MADRM, it will simply not be competent for the court to make a s 11 order (2020 Act, s 24(1)). Tying the court’s hands in this way is in direct conflict with the court’s other duties when considering such an order.
To elaborate, a s 11 order is sought most often when parents disagree over some aspect of their child’s care – usually residence or contact – and have been unable to resolve their differences. Where the court concludes that making an order would be better for the child than not doing so, it is normally required to determine the matter on the basis that the child’s welfare is the paramount consideration, taking account of any views expressed by the child concerned (1995 Act, s 11(7); soon to be ss 11ZA and 11ZB). The court will not be able to fulfil these obligations where the pilot scheme applies to the parties and one or more of them has not participated in it. The issue in dispute will be left unresolved. In their enthusiasm for ADR, it seems that MSPs were prepared to cast aside the basic principles of Scots child law, punishing the child who is left in the middle of the dispute for the perceived sins of the parent(s).
There is a further problem with s 24, since it could prevent the court from making an order that would otherwise be in the child’s best interests, raising the issue of failure to comply with the obligations set out in the United Nations Convention on the Rights of the Child, something that will be all the more significant when the current dispute over the bill to implement the Convention is resolved by the Supreme Court and, as expected, it becomes law.
Evaluating the pilot project
The point of the s 24 pilot scheme is, of course, to inform the decision about whether MADRMs should be introduced in s 11 cases across the whole of Scotland, save for those in the exempt categories. That is reflected in the requirement that not only the scheme itself, but also details of how it will be evaluated are to be laid before the Scottish Parliament (s 24(3)). At the time of writing, details of the pilot scheme have yet to be finalised, but the preliminary plans envisage it operating in a small number of urban and rural locations and lasting for one year.
The preliminary plans are based on an unimplemented proposal for a pilot project put forward by Relationships Scotland and CALM some years ago: ministers’ first report, para 23. That may explain why the pilot is premised on mediators being at the helm, something that raises questions about the methodology of the pilot scheme itself and any evaluation of it.
This comment will confine itself to three such questions by way of illustration:
- Do mediators necessarily know enough about the ADR options other than mediation to explain their advantages and disadvantages fully?
- Assuming the mediators involved in the pilot do understand all the ADR techniques well enough, will there be a temptation to give prominence to the option to which they may have devoted a considerable portion of their working lives?
- Since those who participated in running the pilot will be central to evaluating it, what is the risk of conscious or unconscious bias in evaluating the success of something to which they are committed?
Happily, there is still time for the proposed pilot scheme to be revised and to ensure that it is subjected to rigorous appraisal before, as is entirely possible, MADRMs become the norm across the whole country.
Elaine E Sutherland is a professor at the University of Bergen; a visiting professor at Edinburgh Napier University; Professor Emerita at the University of Stirling; Distinguished Professor of Law Emerita at Lewis & Clark Law School, Portland, Oregon; and a member of the Child & Family Law Committee of the Law Society of Scotland. The views expressed here are her own and should not be regarded as reflecting those of any of these bodies.
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