Legal Aid for Family Law Arbitration and the Children (Scotland) Bill UPDATED

Could we be about to see legal aid for arbitration in family law cases? 

Margaret Mitchell, MSP for Central Scotland and Convener of the Justice Committee, has an amendment to the Children (Scotland) Bill tabled tomorrow which is of interest to those of us who are proponents of DR or ADR (dispute resolution or alternative dispute resolution) and family law arbitration, in particular. You can find the amendments here at the foot of page 10 and page 11 of the Marshalled List of Amendments to the Bill. You can watch the Justice Committee live here.

She proposes that the Bill be amended to require the Scottish Ministers to,

'make provision for legal aid to be available to the parties in dispute to enable the parties to participate in alternative methods of dispute resolution'.

Her amendment would specifically cover the costs of legal aid for the purpose of undertaking alternative methods of dispute resolution, and allow applicants to secure appropriate legal advice to engage in alternative methods of dispute resolution- (i) before, or instead of, commencing court proceedings, or (ii) as directed by the court. The forms of DR covered would be mediation, arbitration, collaborative family law and family group conferencing. 

This would be an enormous step forward for families in Scotland and would be hugely welcome. In my view it is not an overstatement to say that the provision of legal aid to cover arbitration would revolutionise our family civil justice system.

There are intractable cases that will always have to be dealt with by the court, but there are also many, many cases where there is good will and the parties involved do want to find a resolution, but because they simply can't agree what is best for their child they need someone else to make a decision. Situations, for example, where the parents can't agree on what the pattern of contact should be, or which school a child is to attend, or whether the child should be relocated to another place. 

These are matters that could readily be taken out of the court system, to everyone's benefit. These are matters that would not need to contribute to the COVID-19 court backlog. These are matters that could be resolved swiftly and cost-effectively with FLAGS arbitration. And, crucially, those are options that should be available to all citizens in Scotland, not just those who are wealthy enough to fund alternative dispute resolution privately. 

UPDATE: at Stage 2 of the Justice Committee consideration of the Bill on 23rd June 2020 the amendment was passed 5:4. The amended Bill that now goes to Stage 3 can be found here.