Scottish Government

Chapter 7: Improving Court Rules and Avoiding Delays

The Executive supports the aim of the APRG in reducing the time taken by courts to handle permanence cases as it is clearly not in the best interests of a child for these cases to take too long. Additionally, there could be cases in which the current bar on applications following an adoption could lead to injustice, for example if voluntary contact arrangements are stopped by the adopters.

This chapter of the report covers questions 13-15 of the consultation paper which was based on Recommendations 26, 51 and 52 and presents the views of consultees and respondents on ways in which court rules could be improved and delays avoided.

13. The Executive would welcome views on whether a system of leave to apply to court would be effective in providing the protection from repeated or vexatious applications for children and adoptive families. (Recommendations 26, 51 and 52)

14. The Executive would also welcome views on whether other statutory measures would make the system of leave a more effective safeguard. For example:

• Should the legislation require the applicant to produce new evidence, or evidence of a significant change in circumstances to support an application for leave?
• Should there be a minimum period between new applications for leave in respect of the same child?

(Recommendations 26, 51 and 52)

15. The Executive would welcome views on whether legislation should limit the circumstances in which an applicant could seek information about an adopted child in support of an application to court. (Recommendations 26, 51 and 52)

7.1 Whether a system of leave to apply to court would be effective in providing the protection from repeated or vexatious applications for children and adoptive families.

Of those responding to the consultation paper, two individuals and 47 organisations made comments relevant to questions 13 and 14.

Thirty-six respondents agreed with the need for a system of leave to apply to court, although one local authority felt this should be restricted and only allowed in exceptional circumstances as, they felt, the ban on applications should not be removed.

Three organisations disagreed, including 2 from the legal profession - one of whom felt that it was unnecessary,

"It is our view that a system of leave to apply would be neither appropriate nor effective. If an application was without merit, it would be open to parties to indicate this to the court at an early opportunity. Need for leave is unnecessary. The merit of any application would require to be tested anyway. In Scots Child Law it is only exceptionally that leave is required to apply at first instance."

The other representative body of the legal profession felt that it was unduly restrictive,

"The Sub-Committee would query the extent of the problem in respect of 'repeated or vexatious applications'? It would suggest that a system of leave to appeal might be unduly restrictive and might place obstacles in the way of a child seeking to make such an application."

The third, a charitable organisation, suggested the use of a family group conference. One individual and one local authority commented that an adopted child should have the right to apply to court once they had reached adulthood.

One individual expressed the view that courts fail to meet the needs of children. One organisation felt guidance was needed on which court should be approached and how the costs would be met.

7.2 Views on whether other statutory measures would make the system of leave a more effective safeguard.

In the first instance, respondents were asked to say whether the legislation should require the applicant to produce new evidence, or evidence of a significant change in circumstances to support an application for leave?

A total of 31 organisations supported this requirement with one local authority and one legal profession organisation proposing that the applicant show "material change". Furthermore, another local authority felt they should show what has changed. One local authority remarked that a similar situation exists in the Children's Hearings system. One organisation from the legal profession gave examples of various Acts that contain examples of a similar test.

One local authority felt that the new application should meet the Legal Aid standard before consideration and one organisation from the legal profession asked that guidance be given on how to interpret "new evidence" and asked that it be specified in statute what constitutes "material".

In the second instance, respondents were asked to consider if there should be a minimum period between new applications for leave in respect of the same child and 13 organisations supported the proposal for a minimum time period between applications. Three of these suggested that 6 months may be suitable. One local authority had considered suggesting two years but felt that this was a long time in a child's term; an adoption or fostering organisation also mentioned the quick passage of time in a child's life.

Eleven organisations did not see the need for a minimum period of time between applications. Ten of these felt that if the new evidence test was applied successfully then there would be no need for this.

One organisation from the legal profession did not support either suggestion as they disagreed with the system of leave as a whole.

7.3 Whether legislation should limit the circumstances in which an applicant could seek information about an adopted child in support of an application to court.

Twenty-six organisations commented on this specific question and, of these, 15 supported limiting the circumstances while 5 did not.

One response from the legal profession commented,

"We are concerned that if legislation attempts to limit the circumstances where applicants can seek information, there would have to be exceptions. It would have to be within the discretion of the court to decide what information may be disclosed. It would therefore be more helpful to proceed upon that basis and rely upon the court's discretion. Issues under ECHR may arise. It would be difficult to draft legislation that was Convention compatible."

Thirteen organisations commented that the best interests of the child should be paramount in deciding whether information should be made available. One adoption agency thought that an informal approach was preferable.

Individuals participating in the qualitative discussions had little to say about improving court rules and avoiding delays, although there was a perception that anything involving the court can take far too long and there were comments that this can be damaging to those involved in the process, particularly any children.

Professionals tended to comment jointly on court procedures and the Children's Hearings System, with all noting that the length of time for the process to complete is far too lengthy. As the following quotation suggests, there were also concerns about the level of importance given to the court.

"I think the court and the hearing systems - both of them - there are incredible drawbacks there. I suppose normally I …. one of my concerns about the Review is the increasing kind of significance of the court and the whole process. I mean if social workers behaved in the way the courts behave up and down Scotland, they would have appointed a legal representative to investigate what was wrong with the social work! The court has failed Scotland's children very very badly, so I have a problem with putting them in the forefront."

Another professional respondent commented that the attitude of the courts can be adversarial and aggressive and that this can cause problems.

"I think going through that process from the practical point of view of the parent, both the hearing and the courts seem to have got odds against each other, two separate processes in that they both oversee. Some are similar and they overlap but it doesn't overlap very well and there's a lot of delays in the system, and I think people just have to mention 'human rights' and suddenly everybody jumps to the adults in the situation and you do lose sight of the children."

They then noted that in instances where the courts are considering the views of birth and adoptive parents, it can be unpleasant for both parties to have to provide comment on each other. Additionally, they had concerns that defining the interests of a child aged only 2 or 3 years old can be difficult.

The issue of training for professionals involved in the adoption process has been noted in earlier chapters and the professionals attending the group discussion also focused on a lack of training for sheriffs and other court staff involved in adoption cases. It was felt that some sheriffs have very few adoption cases to deal with and that training on this could lead to a greater consistency across Scotland as a whole.

There were also some concerns that solicitors sometimes advise clients badly and this can serve to string things out.

"In fact there's so many legal challenges in the middle part of that process, it means that yes, people waiting a few months to gather evidence or present it in a different setting, whether it's a panel or court hearing but all the time the child is either in foster-placement with a view to adoption or in foster-placement and you don't know what the long term plans are for that child, and it's a long time a couple months for a two year old, that matters! It maybe doesn't matter so much when they are quite a bit older but when you're younger, it really does make a big difference."

One respondent noted that the capacity to challenge within the existing system serves to delay the grief for the birth-parent as well as prolong the process for the child. Another respondent noted that children's attachments are formed by the age of 9 months and that a process taking longer than this serves no purpose.