“It is a problem when the decision-making system, in front of a judge, treats safe and loving, albeit disagreeing, parents with the same procedures as parents where there is a real and serious issue of child or parent safety.”

Shared Parenting Scotland (SPS) has submitted a response to the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee as part of its inquiry into civil legal aid.

Click here to read our full submission.

We find ourselves in the ambivalent position of making strenuous efforts to help individuals understand and make the best of the current adversarial system that we think has fallen behind the realities of parenting in modern Scotland. The Legal Aid (Scotland) legislation binds provision to that adversarial system.

Parents in modern Scotland expect more from each other, and children expect more of their parents. When the relationship breaks down, the system pits parents against each other in a deeply unhelpful way, particularly from the perspective of the children in whose name the court will consider its decisions.

It is a problem when the decision-making system, in front of a judge, treats safe and loving, albeit disagreeing, parents with the same procedures as parents where there is a real and serious issue of child or parent safety.

We believe that many – perhaps even most – separating parents would prefer help to resolve disagreements, not be helped into court.

Nevertheless, while the system is as it is, legal aid ‘deserts’ are real. We hear every day from parents who believe they have a case, but struggle to find a solicitor to argue it.

The private sector structure of the profession has meant that the aspiration of legal aid provision in every part of Scotland has become unachievable. We were aware of cases where there literally was a race between separating parents to be the first to contact the only solicitor in their area.

However, over the last couple of years, we have received calls from parents or grandparents in all parts of Scotland saying they have phoned or e-mailed 50 or 60 solicitors without success.

Our 2024 ‘user survey’ revealed that 20% of those eligible for legal aid had been forced to represent themselves as party litigants.

We know some who have done extremely well as party litigants, but we also know of others who have not represented themselves well and achieved a worse outcome than they could have expected had they been represented.

Our recent ‘user survey’ also revealed the financial costs for those not eligible for legal aid or those who have no choice but to become private clients.

• 13% of respondents had spent over £100,000 on private legal fees and court costs
• 24% had spent more than £25,000
• Over half spent more than £10,000

Many ended up in serious debt. Others walked away, feeling that justice and their continued relationship with their children were out of reach.

A complaint we often hear is the inequality of arms that arises when one party is legally aided and the other is not. The perception is that a legally aided client has no incentive to move towards resolution.

Shared Parenting Scotland is grateful for constructive dialogue with the Scottish Government and SLAB and looks forward to sharing more insights from our work. Our aim remains the same: a more humane, child-focused approach to resolving parenting issues after separation or divorce.