A SUPREME Court judge has called for a reform of Scotland's court and legal aid procedures, saying the system for dealing with child welfare cases has become too protracted, costing the taxpayer millions of pounds every year.
Lord Reed, one of the two Scottish justices of the Supreme Court, raised his concerns in making a judgment on one of Scotland's longest-running child access cases.
The case started in 2003 and has already come under fire as a 2008 Stirling Sheriff Court appeal hearing took 14 months to complete, with evidence taken over 52 days at a cost of £1 million in lawyers' fees.
It has now reached the Supreme Court, where Lord Reed said it was clear the proceedings have "overshadowed" the life of the child who is now aged 10 "perpetuating and deepening the conflict between his parents which has caused him such distress".
In a damning indictment of the process, Lord Reed said the court had allowed those involved to determine the rate of progress of the case.
And Lord Reed, an expert in human rights law, revealed that cases such as this are not uncommon.
The Scottish appeal judge warned courts there was a "duty to avoid undue delay" in concluding such cases to comply with the obligations imposed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Lord Reed said: "It appears to be accepted that the system by which such disputes are dealt with in Scotland is in need of reform. This case exemplifies the reasons why reform is necessary."
It emerged a working group established by the Sheriff Court Rules Council was appointed in August 2011 and expected to report on what rules of procedure, if any, should be put in place to speed up proceedings in cases involving the welfare of children.
But Lord Reed says that remains a work in progress.
He endorsed inviting the Scottish Legal Aid Board to review its rules for the payment of professional fees to solicitors and counsel in such cases, with a view to "discouraging the prolongation of proofs".
He also supported any move to ensure "the liberty which professional advisers enjoyed in this field should be curtailed".
He said there were measures courts themselves can take now "in order to set their house in order".
The first "obvious step" was for sheriffs to "exercise their existing powers" to ensure proceedings are "conducted with reasonable expedition".
Those include powers in relation to time limits for the lodging and adjustment of pleadings, the allowance of amendments, the fixing of proofs and the leading of evidence.
He said: "In particular, contrary to the impression conveyed by some of the submissions in the present case, the sheriff's role at a proof is not confined to ruling on objections and otherwise sitting impassively in silence.
"He possesses the power to intervene to discourage prolixity, repetition, the leading of evidence of unnecessary witnesses and the leading of evidence on matters which are unlikely to assist the court to reach a decision.
"Equally, he can encourage the use of affidavits and other documents (such as reports) in place of oral evidence, or as the equivalent of evidence in chief. These are only examples of measures which can be taken."
In the child welfare case he was dealing with, he said there was "no need for a dispute over contact to take so long to resolve". It did so in this case only because the court allowed the parties to determine the rate of progress," he said.
"The cost of the proceedings before the sheriff, in particular, was wholly disproportionate to the complexity of the issues which had to be resolved."
He added: "It is a cost which could only arise in proceedings of this kind where the parties were publicly funded: it is inconceivable that any reasonable person would expend resources on this scale on a dispute over contact if the money were coming out of his or her own pocket. These matters might be of lesser concern if this case were exceptional.
"But the Lord President records that, as the judges of the First Division were informed, in cases of this kind in the sheriff court such protracted proceedings are not uncommon."
Proceedings in the child welfare case Lord Reed was ruling on began in 2003 in Alloa Sheriff Court, where the father sought an order finding that he had parental rights and responsibilities to two children named only as Z and S.
In the latest judgment, the Supreme Court rejected an appeal against the Inner House's decision to restore the father's parental rights and responsibilities.
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