Lord Carloway affirms parties in family actions have right to participate in phone hearings

Lord Carloway affirms parties in family actions have right to participate in phone hearings

Lord Carloway

The Lord President, Lord Carloway, has made it clear that parties in family actions should be able to participate in telephone hearings if they wish following reports that in some instances such hearings have only involved agents and sheriffs.

In a letter to Shared Parenting Scotland, Lord Carloway wrote: “There is no policy in place in either the Court of Session or in the Sheriff Court which has the effect that any party is excluded from a hearing … It is fundamental to justice being done that parties can participate effectively in court hearings.”

Shared Parenting Scotland national manager, Ian Maxwell, had written to the Lord President earlier this month to give early intelligence on the pressure building up in the courts. 

Three issues have been increasingly dominating telephone and email enquiries as COVID-19 restrictions gradually unwind, namely supervised contact: centres largely remain unable to facilitate supervised contact of the sort that may have been ordered by a court as far back as November or December 2019; a build-up of new section 11 contact/residence cases; and parties’ attendance at hearings.

With respect to the closure of contact centres since March, Lord Carloway wrote: “The important role which contact centres play in family business should not be underestimated. They are a valuable resource which is utilised frequently by the judiciary, the legal profession and child welfare reporters, to support contact between children and their families in a safe environment. … I can assure you, however, that judges, including sheriffs, are aware of the current position in relation to their availability and capacity. Judges will continue to give this due consideration when deciding on the most appropriate disposal in family cases.”

The Lord President referred to his updated family guidance of July 16 which stresses that court orders should be complied with and that there are now very few possible COVID-19 reasons for disrupting contact. The guidance reminds parents that if a case returns to court the judge will look at whether any parent has acted unreasonably in withholding contact.

Lord Carloway wrote: “It is hoped that separated parents will adhere to this guidance and no ’surge’ in cases of this nature will occur.” 

Mr Maxwell said: “It is encouraging that the Lord President replied so fully and speedily to our concerns and is so clearly committed to finding ways of speeding up and expediting business.

“Many of the parents and grandparents who contact us feel the COVID-19 emergency has been exploited to disrupt or stop contact entirely where there are no issues of competence or safety. We are looking to the courts to take the dim view of such behaviour outlined in the updated guidance of July 16th.” 

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