7. Improving Court Procedures and Avoiding Delays
7.1 The Group considered the issue of delay in court proceedings for adoption and freeing and how court procedures might be improved to minimise the time these cases take. The Group also considered changes which might be made to the Sheriff Court Rules which they think might clarify and improve court procedures.
7.2 The Group's major recommendations are:
- pending the implementation of new sheriff court rules, all sheriffdoms should have a Practice Note with guidance for sheriffs and practitioners in permanence cases (in line with the views expressed by the First Division of the Court of Session 1 ) (7.10)
- there should be active case management by judges and sheriffs, and court rules and judicial education should reflect this (7.11)
- sheriffdoms should develop Adoption Centres (7.12)
- all court actions concerning a child should be consolidated under a statutory scheme (7.14 and 7.15)
- the leave of the court should be required for applications in respect of a child subject to a Permanence Order or adopted (7.17)
- the current absolute ban on applications under s.11 of the 1995 Act by people whose parental responsibilities and rights have been removed by freeing or adoption should be ended (7.18)
7.3 In any disputed adoption or freeing, the court must draw up a timetable and give directions for keeping to the timetable 'with a view to determining the question without delay'. 2 Existing rules for both the Court of Session and the Sheriff Court have general provisions about avoiding delay, but neither sets out detailed timetables. 3 Despite these provisions, and judicial pronouncements on the need to avoid delay, there is no uniform system of case management aimed at reducing delay and shortening the length of proofs in adoptions and freeings. 4
Current practice and problems
7.4 In Phase I the Group looked at possible causes of delay prior to the Court's involvement and made recommendations to address the issue of delay in local authority planning and decision making. It also recommended that delay in making applications to court and in court processes should be addressed in the second phase of the review. 5 The Group has proceeded on the basis that it is essential that as little time as possible should elapse between a formal decision by an adoption agency that a child should be adopted and the decision of the Court to grant or refuse the application for an adoption order. The work of the Group has been informed by the individual experience of Group members (some of whom have intimate knowledge of similar proceedings in England and Wales), the responses to Choices for Children and the comments made at and following the conference organised by the Group in November 2004. The Group also benefited from a visit to the High Court for England and Wales and its thanks are due to Mr Justice Holman of the Family Division for his advice and hospitality.
7.5 The Group found a widespread view that adoption cases, including applications for freeing, take too long to resolve. Delays seem particularly prevalent in contested cases, but even some uncontested cases appear to take too much time.
7.6 There appears to be a range of causes for these delays:
- a lack of written pleadings. Adoption proceedings do not follow the pattern of other court actions in identifying the issues in writing before the proof hearing. As a result the evidence at the proof hearing is not always focussed on issues relevant to the question the court is considering and as a consequence proof hearings take longer than necessary.
- a lack of statutory timetables. It appears that courts do not always adhere to the statutory requirement to draw up a timetable to determine the question without delay, and, as has already been observed, there are no statutory timetables in the court rules
- courts do not always insist that reports are lodged on time
- proof hearings can be spread over a protracted period because not all sheriffs insist upon them proceeding from day to day until concluded. Some grant unnecessary adjournments
- reported cases indicate that on occasions sheriffs take too long to write their judgements. 6
Views from consultation
7.7 The Consultation responses indicated real concerns about court delays and welcomed some of the suggestions. There was particular favour for: the specialist approach; specified timetables; separate process for supervision review; less adversarial approach to adoption; joint instruction of experts; and greater awareness of legal aid options. It was felt that the role of the sheriff principal is crucial to reducing delay.
Recommendations for change
7.8 The Group has made recommendations that fall into two broad categories: those that can be taken forward without any legislative action, such as Practice Notes; and those that could be implemented through secondary legislation by the Rules Council prior to any primary legislation resulting from the other recommendations of this report. Since such primary legislation - and the secondary legislation required to implement it - is unlikely to come into force for two or three years, the Group considers that there would be merit in the recommended changes in the court rules being made now to provide for the interim period. However, the Group recognises that it is for others, primarily the Sheriff Court Rules Council, to consider how and when our proposals are implemented.
7.9 The vast majority of adoption cases are dealt with in the sheriff court. Each sheriff principal has a statutory duty to ensure the speedy and efficient disposal of business in the courts within that sheriffdom. 7 In discharge of this duty a sheriff principal may issue a Practice Note dealing with matters of practice within the sheriffdom. In March 2004 the then Sheriff Principal of Lothian and Borders - Sheriff Principal I D Macphail QC (now Lord Macphail) - promulgated a Practice Note dealing with applications for freeing and adoption. 8 This greatly assisted the work of the Group when considering its recommendations regarding the improvements to be made in court procedures. The First Division of the Court of Session has commended the Practice Note, and has expressed the desirability of having similar Notes in the remaining Sheriffdoms. 9 The Group respectfully agrees that all sheriffdoms should have a Practice Note for adoption, related proceedings and other permanence cases.
New court rules
7.10 The Group recommends that when the Sheriff Court Rules Council next considers a revision of the court rules concerning adoption that the thrust of the provisions in these Practice Notes should be incorporated. Other developments, such as video linking in courts and the 2004 consultation by the Rules Council on extending the use of IT in civil cases, should also be reflected in revised court rules.
Active case management
7.11 An important part of the scheme laid out in the above Practice Note is the instruction that sheriffs actively manage the progress of cases. The Group believes that active case management is crucial and that this should be clearly reflected in new court rules. Scotland now has a Judicial Studies Board to assist Judges and Sheriffs in the performance of their duties. The perception of the role of the sheriff has changed and the sheriff is now expected to conduct the proceedings no less fairly, but with an eye to the efficient use of the time of the court and all those involved in the case. Hence the increasing use of the term "active case management". A sheriff who actively manages a case will, for example, insist that reports are lodged on time; will have a pre-proof hearing to determine the facts which are relevant and those which can be agreed; and at the subsequent proof will keep parties within the framework agreed. Judicial education should assist in promoting case management in permanence cases and all aspects of permanence, including relevant social welfare matters. 10
7.12 The Group was impressed by the progress made in England and Wales following upon the introduction of adoption courts which cover a large geographical area. These specialised courts are presided over by judges with an identified aptitude for such work. Until recently, specialism was unusual in the Scottish courts, but there are now experimental specialist drug courts, commercial courts and courts dealing with certain young offenders. These innovations recognise that better outcomes can be achieved through specialisation. The Group believes that cases concerning the permanent placement of a child outwith the home of the birth parents are amongst the most emotionally traumatic possible, and need and deserve a special expertise from all the professionals involved. The Group recommends that court rules should include provision for "Adoption Centres", so that pre-proof proceedings are held in courts where there is a sheriff with specialist knowledge. Video links and electronic systems for the submission of papers and the discussion of preliminary procedural matters mean that these could be dealt with without parties actually having to attend court. They could look at developing informal processes to make proceedings child-centred. Sheriffs could travel to local courts or other venues to conduct disputed evidential hearings. These centres should ensure a greater concentration of knowledge and expertise, particularly in case management.
Separate court applications in respect of the same child
7.13 The Group considered the difficulties that can arise when different types of court applications are made involving the same child, either when a separate application is made when an existing application has not yet been decided, or when a further, different application is made after an order has been granted. 11
Application made when an existing application has not yet been decided
7.14 The Group recommends that there should be a statutory scheme for dealing with situations where there is more than one type of case pending involving the same child. Although there is case law to the effect that there should not be more than one evidential hearing in connection with a child, this can often be overlooked. 12 The Group considers that a statutory scheme would be more effective.
7.15 The Group recommends that a statutory scheme for pending cases has the following rules:
- there should be no separate proceedings in respect of a child if an application for a Permanence Order or an adoption is pending. 13
- any existing applications and all subsequent applications in respect of the child or children should form part of the court process for the Permanence Order or the adoption order, and be considered in that application.
- any court dealing with an application for a Permanence Order or an adoption order should be able to make interim orders similar to those available under other provisions.
- if the Permanence Order or adoption is refused, the court should be able to make directions and orders under s.11 of the 1995 Act or, in the case of an adoption, the permanence order provisions.
This approach would ensure that all court actions in respect of the child are consolidated, and would allow people who have made an application, but who would not normally be parties to the Permanence Order or adoption, to take part in the process and be kept informed of the course of all proceedings involving the child.
Applications following the granting of a Permanence Order or adoption
7.16 After a Permanence Order has been made, the Group recommends there should be a bar on new, separate applications to the court on matters that can be dealt with in the Permanence Order, such as contact or residence. 14 Instead, anyone with an interest should be able to apply to vary or revoke the Permanence Order. Applications should be allowed for matters that cannot be dealt with in the Permanence Order, such as the appointment of a judicial factor under s.11 of the 1995 Act, with notice being given to those with an interest in the Permanence Order. The Group believes that this system would ensure the court takes into account all relevant factors, including the background to the Permanence Order, in making future decisions.
7.17 The Group believes that arrangements for applications to court following a Permanence Order or adoption order should provide the maximum stability for a child without restricting the right of those with an interest to apply for an order. The Group therefore recommends that the leave of the court should generally be required for incidental applications in respect of children who have been adopted or are the subject of a Permanence Order. To ensure that children on Permanence Orders have the maximum legal stability, the Group has separately recommended that the leave of the court should be required to apply to vary or revoke a Permanence Order. 15
7.18 Although the Scottish courts do not commonly use a system of leave to apply, there are provisions which use such a system: for example, a re-application to revoke a freeing order. 16 The Group believes that a system of leave to apply will protect children, adoptive families and others from inappropriate, repeated or vexatious applications to court for contact or other orders. The Group therefore recommends that those whose parental responsibilities and rights have been removed by freeing or adoption should be permitted to make an application under s.11 of the 1995 Act. This recommendation complements the Group's recommendation that a similar change should be made urgently in connection with contact applications following a freeing order. 17
Other changes to the court rules relating to applications to adopt
7.19 The Group recommends there should be a number of detailed changes to the court rules, to improve the system and reduce delays. The main ones are:
- the application should contain a short note of the reasons why the order is in the best interests of the child.
- formal intimation of applications to birth families should be made as soon as applications are lodged in court and they should be required to respond giving notice of their intention to defend if that is their wish. This compares with Notices of Intention to Defend in other court processes. At present, formal notice of applications is not given until after reports have been prepared and lodged in court, which can lead to delays in birth parents taking advice and applying for legal aid.
- in cases which are to be defended, birth parents and/or their solicitors should be required to state which of the facts are disputed, and which facts are agreed. The pleadings need not be restrictive and sheriffs should have a discretion to admit a line of evidence of which notice has not been given.
- sheriffs should have discretion to order written answers in permanence cases, when they think these will be beneficial.
- sheriffs should have discretion to intimate freeing proceedings to any person as in adoption applications. 18
- when evidential proofs have started, they should continue from day to day and not be postponed unnecessarily save in exceptional circumstances.
- sheriffs in all the types of permanence cases should be able to give extempore judgements at the conclusion of the hearing on evidence to be followed by a written judgement within a set timescale. It is for consideration whether the written judgement should be automatic or only at the request of any of the parties.
- the rules for curators and reporting officers should be amended to provide uniformity of wording, where appropriate, and greater clarity. 19
The full list of the detailed proposals for changes to the court rules, prepared by the Legal Adviser to the Group, is at Annex D. It is for the Sheriff Courts Rules Council to propose amendments to the rules and it is hoped by the Group that these suggestion would be useful to the Council in considering amendments to the rules before new primary legislation arising from this report.
7.20 The Group considers that there should be available a series of information leaflets written in plain English - and other languages - to assist birth families about the different stages of the process and their implications, from the internal looked after review to the conclusion of the court process. There could be a series of leaflets. They could be issued as appropriate by social workers, by sheriff clerks in sending formal papers, by solicitors and by curators and reporting officers. These should help to provide birth families with easily digested information.
Recommendations of Chapter 7 - improving court procedures and avoiding delays
45. All Sheriffdoms should have a Practice Note for adoption, related proceedings and other permanence cases. (7.9)
46. When the Sheriff Court Rules Council next considers a revision of the court rules concerning adoption that the thrust of the provisions in the Practice Notes should be incorporated. (7.10)
47. Active case management is crucial and that should be clearly reflected in new court rules. (7.11)
48. Court rules should include provision for "Adoption Centres", so that pre-proof proceedings are held in courts where there is a sheriff with specialist knowledge. (7.12)
49. There should be a statutory scheme for dealing with situations where there is more than one type of case pending for a child with the aim of consolidating all court actions in respect of the child and giving an opportunity for those with an interest to take part in the process. (7.14 and 7.15)
50. There should be a bar on new, separate applications to the court on matters that can be dealt with in the Permanence Order. (7.16)
51. The leave of the court should generally be required for new applications in respect of children on Permanence Orders or adopted. (7.17)
52. The current absolute ban on applications under s.11 of the 1995 Act by people whose parental responsibilities and rights have been removed by freeing or adoption should be ended. (7.18)
53. There should be a number of detailed changes to the court rules, to improve the system and reduce delays. (7.19)