When asked to write an article for the Scottish Child Law Centre about the current barriers to Justice from a Child Law perspective it was a little daunting! Would there not be a short case I could summarise instead? However, this topic is extremely important as we can see as volunteers for the Scottish Child Law Centre (SCLC) from the volume of enquiries the organisation receives. People who are concerned for the well-being of their child, seeking contact with their child or simply unable to resolve disputes with their fellow parent, to name but a few issues.
“Justice” in relation to child matters can be a tricky concept. It is best understood as “the best interests of the child” always. However, we have to concede that for some parents what a Court deems to be in their child’s best interests will not be what they deem to be “justice.” They will not agree that what has been determined is right for their child. They will perhaps not receive the contact that they sought, or perhaps the other parent will be allowed to relocate in the face of their opposition. The issue with a concept such as “best interests” is that there can be several perspectives. Whilst there will always be the more clear-cut issues where a child must be protected from harm, there can also be very loving and well-intentioned parents who have a genuine dispute as to what is in the best interests of their child.
Much of the role of SCLC volunteers is to outline the basics of a parent’s responsibilities and rights. Parents’ duties are to maintain contact, make maintenance payments and take on board the child’s views as long as that is practicable in the circumstances. To outline, from an initial enquiry, what is and isn’t reasonable. We hope that this brief advice can give parents the knowledge to then have productive discussions about their situation. We can also signpost to organisations who can assist, for example with mediation, to progress discussions in a more formal environment, with support. Whilst those accessing the Centre’s resources may not view that with the lofty title of “accessing justice” we are assisting whereby hopefully families, in all their shapes and forms, are moving forward in their lives.
The difficulty comes when discussions break down, mediation cannot take place, for whatever reason, and the position appears at an impasse. What do we do in those cases? Ultimately if a dispute cannot be resolved, and in situations where there is a necessity, then raising a Court action may be required. Legal aid may be available however there can be difficulties for individuals trying to find a solicitor who will undertake work on a legally aided basis. We can advise that parties can use the collaborative process through appropriately trained solicitors however both this and litigation will come with a cost if not legally aided. Many people do not qualify financially for legal aid but would still struggle to pay for a private solicitor. For some they would qualify for legal aid if both parties remained in the former matrimonial home – their principal residence not being taken into consideration. If that isn’t possible, especially during litigation, then potentially in all their financial circumstances, they forfeit their right to legal aid whilst required to pay private rent.
There aren’t easy answers to these issues but education of the public generally to allow parents to have informed early discussions, with their children as the focus, appears to be more important than ever. I have found volunteering at the SCLC very rewarding and also helpful for the development of my own practice. Hopefully more can assist with this every more necessary resource.
By Clair Cranston
Volunteer Solicitor