Legal Aid for FLAGS Family Law Arbitration?

In the minutes following the passing into law of the Children (Scotland) Act 2020 it's curious to be saying that we can't be completely sure whether we are going to have legal aid available for FLAGS Family Law Arbitration. 

In Stage 2 of the Bill's passage through the Scottish Parliament Margaret Mitchell MSP (a Tory MSP who was until today the Chair of the Justice Committee) moved to introduce two sections (11A and 11B) into the Bill. By only one vote, those two sections were passed. They provided for legal aid to be made available for alternative dispute resolution in child law disputes- referring to arbitration in terms.

Concerns were expressed about the wording of the amendments that had passed at Stage 2, and by the time the Bill came to the full Parliament today the Government had taken on board the strength of feeling. The Minister moved two new amendments (32 and 33) to introduce sections entitled, 'Funding for alternative dispute resolution' and 'Pilot scheme for mandatory alternative dispute resolution meetings', noting that these new sections were to 'remove and replace sections 11A and B which were added at Stage 2'. The Minister noted that the Government accepted the 'policy aims' of the amendments that had passed at Stage 2 and suggested that the revised amendment was simply rectifying practical issues that had arisen from the Stage 2 amendments.

So, maybe we should all be quite content that we can now say that public funding will be introduced for arbitration- I hope that is right. It would perhaps have been helpful for this amendment to have expressly stated that arbitration was to be included as as form of dispute resolution to be covered, or at the very least for there to have been reference in the debate to forms of dispute resolution beyond just mediation (both the Minister and Ms Mitchell referred only to mediation).

The other question mark is one for FLAGS. The new provision provides that for public funding to be made available that:

'Any scheme set up, or arrangement made, in accordance with subsection (1), must be
framed so that assistance under it is only available to meet the costs of alternative dispute
resolution procedures that ensure regard is had to children’s views to at least the same
extent as a court would be required to have regard to them by section 11ZB of the Children
(Scotland) Act 1995.'

Considerable work has been done by FLAGS in recent years to make sure that exactly this issue- having regard to the child's views- is properly addressed within the FLAGS Rules and the FLAGS scheme should be eligible under these criteria, but this section again introduces uncertainty that wasn't there before. 

There were many good intentions behind this Act and there has been a most welcome bipartisan approach so there is much to be positive about, but there are also areas where I have significant reservations. I hope that the ADR sections won't fall into the latter category and that we will soon see people in Scotland who are eligible for public funding being able to have the same dispute resolution options that private funding individuals have. More news when we know the timescale for the Act coming into force.