Case management for family actions should not be confined to disputes over children, but proposed changes could be improved, the Faculty of Advocates said today.
Responding to proposals to extend and reform the case management of family and civil partnership actions in the sheriff court put forward by the Scottish Civil Justice Council, Faculty agreed that case management should be applied to all actions, and not just to those seeking an order relating to parental responsibilities under s 11 of the Children (Scotland) Act 1995.
Its response notes that in some sheriff courts, attempts to implement case management are being made in cases other than those involving a crave for a s 11 order, but the effectiveness of this is hampered by the lack of rules at present.
“Case management will be of benefit to family and civil partnership actions whether they include a crave for a s 11 order or not. It will assist in focusing issues,” it states.
Welcoming the aim of reducing drift and delay, Faculty however challenges some of the specific recommendations for child cases.
One recommendation Faculty does not favour is a two-track system for s 11 cases – one where a proof is anticipated, and the other where it is thought the issues might be resolved by child welfare hearings without a proof.
"A better approach may be to commence all cases with a fixed timetable running up to the full case management hearing, which timetable can then be varied on cause shown… This would allow flexibility whilst maintaining management of the litigation", it claims.
Faculty also disagrees with a suggestion that case management and child welfare hearings should be kept separate: "It may be more cost effective for litigants and a more efficient use of court time for case management hearings to take place on the same date as a child welfare hearing. The hearings have distinct purposes, but it would make sense for it to be possible for them to be dealt with together."
Faculty supports moves to limit the time for which family actions can be sisted (held back from further procedure), provide more information on witness lists, for the same judge to deal with a case from beginning to end where possible, for the power to refer an action to also mediation to be widened, to regulate the use of expert evidence, and for similar procedure to apply to minutes of variation. However it disagrees that rules should attempt to control the form of pleadings, being a matter more appropriate to a practice note.