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SP Paper 401

8th Report, 2005 (Session 2)

CONTENTS

VOLUME 1

Remit and membership

Introduction and background

Evidence taken by the Committee

Structure of the report

Rules regulating aspects of marriage and divorce

Section 1: Reform of forbidden degree of marriages – relationships by affinity

Section 2: Void marriages solemnised in Scotland

Marriage by cohabitation with habit and repute

Section 14: Wallis v. Wallis

Divorce

Protection against domestic abuse

Occupancy rights and domestic violence; interdicts and powers of arrest (sections 4-9, 24)

Parental responsibilities and rights

Automatic PRRs for unmarried fathers

Retrospective application of PRRs

Domestic violence – rebuttable presumption

Post separation parenting and other issues arising from discussions on PRRs

Parenting Agreement

PRRs for grandparents

PRRs for step-parents

Legal safeguards for cohabiting couples and their children

Policy intention

Meaning of “cohabitant”

Factors for determining whether a person is a cohabitant

Sections 19 and 20: Rights in certain household goods and certain money and property

Section 21: Financial provision on separation before death

Section 22: Financial provision on intestacy

Interaction with other family relationships

Legal regulation of civil partnerships

Other issues

Abolition of the status of illegitimacy

Subordinate Legislation Committee report

Policy Memorandum

Financial Memorandum

Overall conclusions and recommendation

ANNEXE A – SECTION 22, WORKED EXAMPLES

VOLUME 2

Remit and membership

Remit:

To consider and report on matters relating to the administration of civil and criminal justice, the reform of the civil and criminal law and such other matters as fall within the responsibility of the Minister for Justice, and the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigations of deaths in Scotland.

Membership:

Pauline McNeill (Convener)
Marlyn Glen
Mr Bruce McFee
Margaret Mitchell
Mrs Mary Mulligan
Mike Pringle
Stewart Stevenson (Deputy Convener)

Committee Clerking Team:

Callum Thomson
Douglas Wands
Lewis McNaughton

Stage 1 Report on Family Law (Scotland) Bill

The Committee reports to the Parliament as follows—

introduction and background

1. The Family Law (Scotland) Bill was introduced in the Parliament on 7 February 2005. The Policy Memorandum states that “the Bill will update family law to provide legal protection and safeguards for children and adults in today’s family structures”.

2. The Executive states that “family law provides the legal framework that regulates responsibilities and rights between couples and between children and their parents and others with an interest in their welfare. Scotland, in common with many other countries has in recent decades seen significant changes in family formation and in attitudes towards the family. The Bill updates the law to reflect the way adults, in many instances with children, form and maintain relationships. Three core principles guide these reforms:

  • safeguarding the best interests of children
  • promoting and supporting stable families
  • updating the law to reflect the reality of family life in Scotland”.1

3. The Bill has been a long time in the making. Proposals to reform family law were made by the Scottish Law Commission in 1989 and 1992 and the Scottish Office and then the Scottish Executive consulted on the issues contained in the Bill in 1999, 2000 and 2004.

4. The Committee believes that there are highly controversial elements within the Bill and proposals for complex changes to family law in Scotland. The Committee wishes to note that for a Bill of this scale and complexity, the time available for scrutiny has been short. We have, therefore, reserved our position on certain matters with the intention of considering them in more depth at Stage 2.

5. The Bill addresses a number of discrete issues in the style of a family law miscellaneous provisions bill. However, the following central issues that are addressed include:

  • legal regulation of aspects of marriage;
  • legal regulation of aspects of divorce;
  • protection against domestic abuse;
  • parental responsibilities and parental rights for unmarried fathers;
  • legal safeguards for cohabiting couples and their children;
  • legal regulation of civil partnerships; and
  • legal dissolution of civil partnerships.

6. In addition to the legislative measures which the Executive is proposing in this Bill, the Executive has stated that it will bring forward a number of non-legislative initiatives to supplement the provision of the Bill, including:

  • introduction of a Parenting Agreement for Scotland;
  • preparation of a Grandparents’ Charter;
  • development of a single national family relationship helpline to offer basic information;
  • running a public information campaign designed to inform people of changes to family law and signpost sources of help and advice; and
  • working with national bodies to support mediation services across Scotland.2

Evidence taken by the Committee

7. The Justice 1 Committee issued a call for written evidence on the Bill on 10 February 2005 and received 212 written responses. The Committee also heard oral evidence across seven sessions which, together with associated written evidence, is included in Volume 2 of the report, at Annexe D. Other written evidence received is available on the Parliament’s website. The oral evidence sessions were arranged as follows:

Session 1: 8th Meeting, 2005 (Session 2), 16 March
Scottish Executive Bill team

Session 2: 14th Meeting, 2005 (Session 2), 11 May
Moderator of the Church of Scotland,
Roman Catholic Church
Salvation Army
United Reformed Church
CARE for Scotland
Scottish Inter Faith Council
Scottish Council for Jewish Communities
Family Mediation Scotland
Equality Network

Session 3: 15th Meeting, 2005 (Session 2), 18 May
Children in Scotland
Children 1st
Families Need Fathers
Grandparents Apart Self Help Group
Stepfamily Scotland
Scottish Women’s Aid

Session 4: 16th Meeting, 2005 (Session 2), 25 May
Australian Parliament House of Representatives Standing Committee on Family and Human Services (video conference)

Session 5: 17th Meeting, 2005 (Session 2), 25 May
Professor Eric Clive, University of Edinburgh
Professor Paul Beaumont, University of Aberdeen
The Law Society of Scotland

Session 6: 18th Meeting, 2005 (Session 2), 1 June
Gary Strachan
Alan Finlayson OBE
Hugh Henry MSP, Deputy Minister for Justice

Session 7: 19th Meeting, 2005 (Session 2), 8 June
Hugh Henry MSP, Deputy Minister for Justice

Structure of the report

8. The report addresses the central issues in the order in which they are listed in paragraph 5. The Committee recognises that the non-legislative initiatives listed in paragraph 6 are of direct relevance to the debate over some of these matters which are addressed through the Bill. As such, the approach that the Committee has taken in this report is to discuss the non-legislative initiatives in the context of its analysis of the provisions in the Bill, as opposed to having a separate section on non-legislative initiatives appended to the main report.

rules regulating aspects of Marriage and divorce

9. A number of fairly small changes are proposed to the area of marriage law. The Policy Memorandum states that a number of the rules depend on common law and the aim is remove anomalies and redundant provisions and provide clarification of a small number of aspects of the law.3

Section 1: Reform of forbidden degree of marriages – relationships by affinity

10. One such issue is that the Bill removes the barrier to a marriage between individuals and their former in-laws, for example a man would now be able to marry his ex mother-in-law (or ex daughter-in-law) without waiting for the deaths of his ex-wife and her father (or his son). In the case of the former example, and where there was a child involved, the relationship might be perceived as changing from grandmother/child to step-mother/child. It should be noted that the Bill keeps the qualified prohibition on marriage between ex-step-parents and children.

11. This provision was controversial for a large number of members of the public, who cited religious reasons as to why such a change should not be made.

12. The Committee accepts that there is opposition to this provision. Furthermore, the Committee accepts that it is undesirable for a child’s relationship with an adult to change as would be the case in the circumstances outlined above. The Committee would like to receive reassurance from the Executive that it has reflected on this point. At this stage, however, the Committee’s position is that it does not consider that there continues to be public policy grounds for the state to forbid these classes of individuals from re-marrying.4

Section 2: Void marriages solemnised in Scotland

13. One relatively minor issue which attracted comment from legal practitioners and academics is in relation to the extent to which marriage can be declared void. Section 2 puts into statute two grounds that will make a marriage void (that is where there has been ‘duress’ or ‘error’) where that marriage is “solemnised in Scotland”. The issue for the Committee has not been the substance of what the Executive is seeking to achieve but the fact that these protective provisions would not cover, say, the overseas marriage of a Scots domicile.

14. The Committee supports the view of the Law Society of Scotland that such protection should apply irrespective of where the marriage is solemnised. In written evidence, the Executive has confirmed that it will bring forward an amendment to section 28 of the Bill at Stage 2. The intention of this amendment will be to add a public policy provision to that section so that if a marriage is celebrated under such circumstances as would be against public policy in Scotland (such as under duress) then the marriage would be void regardless of whether it is celebrated in Scotland or abroad.

15. On the face of it, the Executive’s proposal meets the concerns that the Committee had on this subject. The Committee will examine the issue in more detail at Stage 2.

16. Throughout the Bill, there are examples of law reform applying to marriage but not, apparently, applying to civil partnerships. The Committee considers the issue of void marriage is one example of where the approach to law on marriage and civil partnership should be consistent. The Committee addresses the wider issue of ensuring there is parity of treatment between spouses and civil partners later in this report (paragraphs 217 – 221).

Marriage by cohabitation with habit and repute

17. The effect of section 3 of the Bill is to extend jurisdiction to the sheriff to in relation to declarators of marriage and declarators of nullity of marriage in most instances. In the former category, this would include marriages by cohabitation with habit and repute. This gave rise to the Committee considering the wider issue as to whether it was appropriate to keep this ancient and little used form of marriage given the provisions in this Bill for new rights and responsibilities for cohabitants.

18. The doctrine of marriage by cohabitation with habit and repute was defined by the Scottish Law Commission as follows:

“If a man and a woman who are free to marry each other cohabit as husband and wife in Scotland for a considerable time and are generally regarded as being husband and wife they are presumed to have consented to be married, even if only tacitly, and, if the presumption is not rebutted, will be held to be married by cohabitation with habit and repute. Although the marriage results from the combination of mutual consent and the outward elements of cohabitation and repute, without the need for a court decree, in practice a court decree of declarator is sometimes necessary before third parties will accept that the requirements for this type of marriage have been met.”5

19. The Scottish Law Commission’s view was—

“As a way of getting married, marriage by cohabitation with habit and repute has little to commend it. It is inherently vague and unregulated and causes difficulty and expense at a later stage. In reality this type of marriage is a way of conferring rights on some cohabitants, usually after the death of the other party to the relationship. It is as a protective mechanism for cohabitants that it must be judged.”6

20. The argument made by several legal academics and professionals is that changes in social habits mean that it is now usual for cohabiting couples not to pretend that they have gone through a marriage ceremony. Such relationships therefore do not have the repute of being a marriage and, as such, they would not be protected by this doctrine. Professor Eric Clive argued that the Bill gives protection for all cohabitants (these provisions are discussed at paragraphs 173 – 216 below) and it is therefore inappropriate that there should be two levels of protection for cohabitants. That is to say it is wrong that the law may give a higher level of protection to those cohabiting couples who have pretended to marry than to those cohabiting couples who have been more open about the nature of their relationship.

21. The Committee recognises that proponents of change in this area of the law have accepted that should this doctrine be abolished it should still be valid for couples to seek declarators if they have already established the necessary cohabitation and repute by the time of the relevant provisions coming into force. In short, any abolition would not have retrospective effect.

22. Relevant to this discussion is the issue of the general public’s understanding of the law in this area. The Committee notes that in a recent survey 57% of people asked considered that individuals living in a so-called “common law marriage”7 did have the same rights as married couples.8 The Committee is doubtful whether the general public appreciates that the only form of common law marriage that would deliver such rights is this doctrine of marriage by cohabitation with habit and repute. The Committee wonders whether people simply living together as ‘bidie ins’ would realise that this relationship would be insufficient basis to seek a declarator.

23. Opponents of this doctrine argue that the long term continuation of this form of marriage on top of ‘regular marriage’; civil partnerships and cohabitation would serve only to confuse an already complex situation. The Committee understands that this doctrine is used little more than two or three times a year and its continued existence or abolition is not of fundamental importance.

24. The Committee’s position is that the law, and family law especially given that it impacts on all our lives, should be as simple to understand as possible. The Committee therefore considers it important that the Executive takes this opportunity to seek to dispel the widely held belief in ‘common law’ marriage in order to avoid confusion with the limited rights for cohabitants which the Bill will create. The Committee would welcome the Executive’s response as to how it intends to go about this.

25. On the specific doctrine of marriage by cohabitation with habit and repute, the Committee considers that this is the appropriate time to look at whether this doctrine should be abolished, as part of the consideration of wider reforms to family law. The Committee requests that the Executive examine whether it considers that the abolition of the doctrine would give rise to cases of real disadvantage and report back to the Committee. The Committee will wish to look again at this issue at Stage 2.

Section 14: Wallis v. Wallis

26. Section 9(1)(a) of the Family Law (Scotland) Act 1985 requires the divorce court to share fairly the net value of the matrimonial property. This is defined as the value of the property on “the relevant date” which is either the date of separation, or the date of service of the divorce action. The court therefore allocates matrimonial property between the parties by reference to the value on that date, and provides for a balancing payment.

27. If the court orders a transfer of property from one spouse to the other, in order to effect fair sharing, it will do so using the values at the relevant date. The House of Lords decided in Wallis v Wallis 1993 SC (HL) 49 that the current value should not then be taken into account in any balancing payment. If the property transferred has increased in value the transferee gets the ‘bonus’ of the whole increase in value. This has in practice deterred courts from transferring houses, because it is seen as unfair for one party to have the whole windfall of the increase in value.9

28. There has been criticism that, in addressing the issues which have been thrown up by the Wallis case, the Executive may, in its wording of section 14, have gone too far in diluting the significance of the relevant date. Professor Eric Clive gave the Committee the following critique—

“It would be wise to distinguish between three quite different problems, the first of which is…where the court orders one spouse to transfer property to the other partner for a countervailing price. That problem must be dealt with on its own. The bill needs to say, clearly and simply, that the countervailing price should reflect the current value…

The second problem, which is a different question altogether, is how the matrimonial property should be valued to decide the overall division between the parties. A decision must be taken on whether to use relevant date or value—I am sorry; by value, I mean valuation. Basically, the committee should decide whether to take the date on which the parties separated, the current value or a mix that would give the court discretion to depart from the value on the relevant date.

The idea of valuing matrimonial property at the date on which the parties separated, which has been a feature of our system since 1985, is that it gives certainty. There is a fixed date on which the valuation is made and negotiations can be undertaken on that basis. That certainty is a positive advantage in the system; people do not necessarily want there to be too much discretion. However, some people would argue that there should be some flexibility in the system. Obviously, things can change between the relevant date and the date of the divorce. On balance, the advantages of having a fixed relevant date are important, and there are other ways of dealing with injustice, such as awarding interest on one spouse's share.

The third problem is pensions, which is also a separate issue. Although there are particular problems with pensions, they are largely to do with the regulations and not with primary legislation. Again, there is some value in having the clear starting point of the transfer value, which is used at the moment and which saves a lot of actuarial expense. I know of certain cases in which such an approach is not appropriate and might need some fine tuning, but I am happy to leave that to pensions experts. In any case, pensions are a separate question and should be dealt with on their own.

The problem with section 14 is that it attempts to solve three problems at once, but does not solve any of them very well.”10

29. The Committee also understands that the Wallis judgment affects the Family Law (Scotland) Act 1985 upon which the equivalent provisions in the Civil Partnership Act 2004 were based. Any amendment to the 1985 Act to deal with Wallis should, therefore, be replicated with amendments to the 2004 Act.

30. In response to criticism of the wording of section 14, the Executive has established a working group to work through the issues with a view to the Executive bringing forward amendments at Stage 2. In a letter to the Committee, the Minister has now indicated that section 14 has been too widely drawn and would, as it stands, potentially undermine the concept of “relevant date”.11 The Executive has therefore produced a draft substitute section 14 and has issued this wording to outside parties for their comments prior to finalising its position on this matter.

31. The Committee welcomes the Executive’s proactive approach to this issue. In recognition of the establishment of the working group, the Committee has taken little evidence on this issue. The Committee notes the existence of a draft substitute section and will wish to consider the responses received by the Executive to its consultation, particularly in relation to the pensions point. The Committee recognises that it is particularly difficult to strike the balance between having certainty in this area of the law while also enabling equitable decisions to be taken.

32. The Committee requests receipt of the responses to the Executive’s consultation. The Committee will look at this issue in further detail at Stage 2.

Divorce

Proposed reforms

33. In the Policy Memorandum to the Bill, the Executive states that the “intention is to reduce acrimony in divorce, especially where children are concerned, and to enable couples who are determined to end their marriage to do so without unnecessary conflict and recrimination. At present, the single ground for divorce is the irretrievable breakdown of the marriage. Such breakdown may be established by 2 years separation with consent or 5 years without consent. Alternatively, it may be established without a waiting period on any of the three "fault" grounds (adultery, unreasonable behaviour or desertion).”12

34. The Executive’s aim is “that by shortening the periods of separation needed to establish breakdown of marriage, fewer couples will use the grounds of adultery or intolerable behaviour with all the attendant acrimony, simply to get a speedy divorce. The Bill reduces the period of separation to establish irretrievable breakdown of the marriage from 5 years without consent to 2 years and from 2 years with consent to 1 year.”13 A further effect of the Bill is that ‘desertion’ disappears as a ground for divorce and also two bars to divorce are also removed — (1) the need for one party to suffer grave financial hardship and (2) collusion.

35. The Executive argues that research evidence suggests that “children from separated families where there is financial hardship, high levels of parental distress and conflict, and constantly changing circumstances may experience poorer outcomes.”14 The Executive states that evidence suggests where the process of separation is handled well the adverse impact on children may be minimised.15

36. In the 2004 consultation document Family Matters: Improving Family Law in Scotland, the Executive received sharply polarised views on this issue. “In total 190 respondents (62% of total) commented, most of them individuals. Some 90% of the individuals were opposed, whereas some 73% of other respondents were in support. However, a significant minority of responses from individuals contained a degree of identical wording of phrases and sentences, indicating the likelihood of various campaigns and lobbying of views amongst some communities. From some of the comments made in such responses, it could perhaps be deduced that some respondents had not had sight of the consultation paper itself but had based their submissions on information provided to them by a third party”.16

37. The response to the Committee’s call for written evidence was similar. Over 200 responses were received. The majority of these were from individual members of the public who opposed the proposals on the basis that they would undermine the institution of marriage and that this, in turn, will have a deleterious effect on family units and wider society. Many of the submissions were very similar in content. The Committee also received the views of a number of religious and faith organisations. The Committee took oral evidence from a number of these bodies.

38. The starting point would appear as expressed by Vanessa Taylor of the Scottish Inter-Faith Council—

“The faith communities regard marriage as being for life, but all the major faith communities accept or at least tolerate divorce; with the exception of the Roman Catholic community…Divorce is increasingly accepted as a facet of modern life.”17

39. The Committee notes that in previous consultations the Executive did explore whether the divorce process should be on an entirely “no fault” basis. The majority view then, particularly from religious and faith groups, was that a mixed system – particularly with the retention of the separate ground of adultery – should be maintained. The Committee found this to be the case also.

Separation periods for non-fault divorce

40. In the context of the specific proposal to reduce the time period from (a) 5 years to 2 years where no consent exists between the two parties and (b) 2 years to 1 year where such consent, there was a general acceptance that, whatever the time period that is set as being the necessary separation period, this will be, to some extent, arbitrary.18

41. It is clear that fault divorces can be quicker than non-fault divorces – no separation time is involved. The Committee notes the evidence of Family Mediation Scotland who said that there has been a steady movement towards use of the non-cohabitation (i.e. non-fault) grounds for divorce, with just over 80% of people who seek a divorce using these grounds. That organisation told the Committee that there is a tendency among those who have children to use the fault grounds of adultery or unreasonable behaviour, because people can get a divorce much more quickly if they use those grounds as opposed to non-fault grounds where the option is to wait for either two years or five years depending on whether or not both parties consent to the divorce.19

42. Accordingly, proponents of changing the law say that if the parties are required to wait for only one year, they might be more likely to wait for that period and proceed with a divorce on a consensual basis rather than raise a fault-based divorce.20

43. Against this, there is an argument that any reduction in separation times may mean that parties do not have time to fully reflect on the situation. As such, the argument is that the proposed change may mean that some marriages which under the current regime may be saved as a result of a reconciliation between the parties will no longer have that chance given the reduced timescales in which any reconciliation would have to take place.

44. The Committee notes that the existing divorce law does contain provisions encouraging reconciliation in that section 2(1) of the Divorce (Scotland) Act 1976 states that “at any time before granting decree in an action for divorce, if it appears to the court that there is a reasonable prospect of a reconciliation between the parties, it shall continue, or further continue, the action for such period as it thinks proper to enable attempts to be made to effect such a reconciliation; and if during any such continuation the parties cohabit with one another, no account shall be taken of such cohabitation for the purposes of that action”.

Committee’s conclusions on divorce proposals

45. The Committee’s starting position is that the law in this area should strike the balance between (1) recognising the value that the institution of marriage brings while (2) not unnecessarily interfering in the private lives of individuals. The Committee also considers that any reform in the law should not result in a higher proportion of marriages ending in divorce.

46. The Committee recognises that for a significant section of Scottish society marriage is a life-long commitment and that for some people divorce is intrinsically wrong.

47. The Committee regrets that it did not receive specific evidence of the adverse impact on children of there being a prolonged separation period should there be conflict between the mother and father. However, the Committee accepts the general proposition that by reducing the length of the separation period, divorcing couples are more likely to use the non-fault ground for divorce which is likely to mean shorter periods of acrimony within the family in line with the shorter periods before the marriage comes to an end. If the result of faster divorce settlements is that fewer children become embroiled in prolonged and distressing periods during which one parent seeks to blame the other parent in order to get a divorce, the Committee considers that the policy objective is worthwhile.

48. The Committee notes that a prolonged separation period is only one important factor among the complex reasons for the existence of conflict and acrimony.

49. However, the Committee recognises that marriage break-up happens and that it is right that the law should be updated in the light of trends in society. In turning to the specific proposals for the reduction in periods before a divorce may be granted on separation grounds, the Committee was persuaded by the argument made in oral evidence by a representative of the United Reformed Church who made the point that five years represents a very long period in the life of a young child and it is important to reduce the amount of conflict to which children are witness.21

50. Beyond this change, there is not a consensus opinion in the Committee. The majority view in the Committee is that, at this stage, insufficient social research evidence has been received by the Committee to justify the Executive’s specific proposals to reduce the separation periods to two years (where consent from both parties does not exist) and one year (where there is consent). A minority of members were, however, persuaded by the evidence from the Executive and are content with the proposals.

51. The Committee is content to allow a fuller debate to take place on this issue at Stage 2.

Family support services

52. The Committee considers that legislative reform in divorce cannot be considered in isolation from the provision of family support services. Earlier in the report, the Executive’s non-legislative initiatives were listed. The Committee notes the intention of the Executive to develop a single national family relationship helpline to offer basic information and also to run a public information campaign designed to inform people of changes to family law and signpost sources of help and advice.

53. The Committee does not consider that it has sufficient information on the extent to which counselling services are available to couples who are experiencing marital difficulties. It appears logical to the Committee that these services will be of most value if they are available to couples who are just starting to experience difficulties, as opposed to later on when the relationship has deteriorated to such an extent that counselling is regarded as one last attempt to save the marriage.

54. The Committee has doubts that these reconciliation services are available to men and women at a sufficiently early point in the process. The Committee considers that by making these services more widely available (and by publicising them more) it may lead to some couples being able to sort out their problems before they become intractable and divorce becomes inevitable.

55. The Committee also understands that the Executive has agreed to give £250,000 additional funding to four support services namely, Family Mediation Scotland; Couple Counselling Scotland; Scottish Marriage Care and Stepfamilies Scotland to enable them to improve their joint working and improve the referral process between the bodies.

56. The impression that the Committee formed from evidence presented by organisations and individuals was that the provision of these types of support services was patchy across Scotland. Anecdotally, the Committee understands that the set-up in Glasgow, for example, is integrated and well-resourced. The Committee has concerns that provision is less strong in other parts of Scotland. The Committee does not wish to endorse a view that additional funding is required – the Committee simply does not have the evidence to accept or reject such a recommendation.

57. Instead, the Committee considers that there is a need for a review to be carried out to assess the level and type of counselling / mediation / family support services that exist across Scotland. The Committee also considers that the Executive should look at how other countries comparable systems are set-up. For example, the Committee was struck by how Australia has approached this issue. The chairman of the former Australian House of Representatives Committee on Family and Community Services told the Committee—

“I hope that the family relationship centres will be used as a one-stop shop, which was one of the recommendations that we argued in our report. Such a one-stop shop would be the administrative advice centre for couples who were thinking of separating. If the centres serve that purpose, they will be a good source of administrative material to help people sort out their problems. They would provide opportunities for mediation or opportunities for people to go to an area set aside to deal with domestic violence, if that was an issue that was confronting the person who walked through the door.

The family relationship centres are really advice centres. Through early intervention services, they will allow an attempt to be made to reconcile two people—that is the number 1 priority. The centres do not deal only with the post-separation period; they are also about the pre-separation period, so we aim for a preventive approach. I hope that we can achieve reconciliation through such critical early intervention and that, instead of going to a solicitor, people will rely on the advice that they are given in the centres. The experience of getting advice from a centre would be a more conciliatory experience than going to a solicitor to determine something along the lines of "What's yours is mine and what's mine is yours."22

58. The concern that the Committee has is that beyond the initial entry point that would be offered through the single national family relationship helpline, there may not be an integrated, comprehensive support service across the whole of Scotland. As such, there could – the Committee does not wish to go further than that – be a risk of raising false expectations that cannot be matched by the level of service which is actually available to couples in terms of advice, counselling or mediation.

59. The Committee believes that there may be considerable merit in examining whether the provision of relationship support services (for all types of family relationship) could be better delivered through a ‘one stop shop’ approach similar to the Australian family relationship centre model. This could include an information pack containing advice on the legal and practical consequences for couples entering into a particular relationship (whether marriage, civil partnership or cohabitation), access to reconciliation services at an early stage should a relationship fall into difficulty, and mediation assistance and legal advice from trained experts should attempts at reconciliation fail.

60. It is on this basis that the Committee recommends to the Executive that it is necessary to have a full review of existing provision to establish what types of services are needed and to identify whether there are any structural and/or resourcing issues that should be addressed. The Committee believes that, with the current package of family law reforms currently taking place, now is the right time to take the first step by reviewing the services which are currently available.

Joint petition for divorce?

61. Another issue which the Committee pursued during oral evidence was whether there is merit, in the case of non-fault divorces, to move away from a system when one party still has to sue the other party, towards a joint application process. There was general support for the view that what is designed to be a consensual process should not be made unnecessarily adversarial. The Committee floated the idea of having a ‘joint petition’ process in cases of non-fault divorce. This would be an additional mechanism rather than a replacement for the existing process.

62. However, the Law Society argued that the process by which there still has to be a pursuer and a defender in non-fault cases does not actually make the process acrimonious in itself and that the joint petition process would add an extra level of complexity.23

63. The Committee attaches weight to the views of legal practitioners and appreciates that the introduction of a joint petition process may not necessarily have much tangible advantage but agrees with the view of Professor Clive that there is symbolic merit in introducing a mechanism which has the appearance of reducing the contested element in divorce. The Committee believes that this is in keeping with the Executive’s legislative proposals and, therefore, asks the Executive to look into the possibility of introducing such a system and report back to the Committee.

Religious divorces

64. An issue which does not feature in the Bill, as introduced, is whether Scots law should make provision for religious divorce. This issue was raised by the Scottish Council of Jewish Communities and the position was summarised in a SPICe briefing paper for the Committee.24

65. Scottish people who profess the Jewish religion typically regard themselves as operating under a dual system of ‘law’. On the one hand, they adhere to the law of the state laid down by legislation and case law; on the other hand, they want to abide by the principles of their religion, including the provisions of Jewish law.

66. They regard divorce legislation (i.e. Divorce (Scotland) Act 1976) as empowering dissolution of the civil aspect of their marriage only, whilst leaving the religious aspect of the marriage intact. Accordingly, without an additional ‘Jewish divorce’ (‘Get’), while entirely free to marry again in the eyes of the civil law, they are not free to marry again under Jewish law.

67. The requirement of mutual consent to the Jewish divorce can sometimes result in unfairness to one of the spouses. A husband (or a wife) may refuse to participate in Jewish divorce proceedings, thereby leaving their spouse (although divorced according to Scots law) unable to remarry according to Jewish law. Sometimes a refusal may be based on spite or bitterness. Sometimes it may be used to obtain some perceived negotiating advantage in the discussions which are ongoing in the period leading up to the divorce, relating to children, property and finances.

68. When the Scottish Office issued its consultation document, Improving Family Law in 1999 it sought views on whether the Scottish courts should be given a discretionary power (exercised on the application of either party to the divorce) to refuse a divorce recognised under Scots law to a spouse who unreasonably refuses to cooperate with his or her partner in the termination of a religious divorce. The next consultation paper – Parents and Children (2000) – confirmed that it was the Executive’s intention to amend the law to give the courts this discretionary power. In 2002 the Divorce (Religious Marriages) Act 2002 addressed the issue for England and Wales.

69. However, the 2004 consultation paper and, indeed, the Bill is silent on this issue. The Committee has heard representations from the Scottish Council of Jewish Communities on this issue and asked whether that group had a specific suggestion as to how legislation should place sanctions on those who seek to thwart the deliberation of the civil system post hoc. Subsequent advice from the Scottish Council of Jewish Communities was that this approach would not actually achieve the purpose that the Council sought since it may actually invalidate the Get on the grounds that it might have been given or received under duress.25

70. The Committee also wishes to state that there are strong arguments that, as a matter of principle, the law should not conflate civil and religious divorces.

Protection against domestic abuse

Occupancy rights and domestic violence; interdicts and powers of arrest (sections 4-9, 24)

71. The Policy Memorandum states that the primary aim of these sections of the Bill is to improve the protection offered to members of families, and extend them to include vulnerable cohabitants, including same-sex couples, rather than to make changes to the basic policy of the Matrimonial Homes (Family Protection) Act 1981. The Bill extends the scope of matrimonial interdicts and introduces domestic interdicts to cover the applicant’s home, place of work and the school attended by any child and makes interdicts with attached powers of arrest available to divorced partners and present and former cohabitants whether same-sex or opposite-sex.26

72. The Committee welcomes the fact that the Executive have made proposals to modernise the law of interdicts and powers of arrest, and in particular the proposals to grant the same level of protection to unmarried as to married couples and to grant the same level of protection to same-sex as to opposite-sex couples. We do have, however, one general concern, and two specific concerns.

Complexity of the law

73. In many written submissions from family law practitioners and academics the point was made that the law in practice was becoming increasingly complex in this area and that the provisions particularly in section 24 of the Bill added to that complexity. Domestic violence is an insidious problem and it needs readily accessible remedies. On the enactment of section 24, Scots law will contain four separate but overlapping regimes of interdict and powers of arrest, all designed to do exactly the same thing :

  • Married couples may seek a matrimonial interdict under s. 14 of the 1981 Act and attached thereto must be a power of arrest under s. 15.
  • Unmarried couples (opposite-sex or same-sex) will be able to seek a domestic interdict under s. 18A of the 1981 Act (as inserted by the Family Law (Scotland) Bill) and attached thereto must be a power of arrest under s. 18C (as so inserted).
  • Civil partners may seek a relevant interdict under s. 113 of the Civil Partnership Act 2004 and attached thereto must be a power of arrest under s. 114.
  • Anyone (including all of the above) may seek a common law interdict and attached thereto may be a power of arrest under the Protection from Abuse (Scotland) Act 2001.

Differences between provisions

74. Though these processes are all directed to the same aim, there are some crucial differences:

  • The first three processes are available only to those with a particular status; the fourth is available to everyone.
  • The first three require the court to attach a power of arrest in all cases when the interdict is ancillary to an exclusion order, and in all other cases unless the court considers it to be unnecessary to attach a power of arrest. The fourth allows the court to attach a power of arrest if it considers it necessary.
  • The time-limits are different. With spouses (matrimonial interdicts) the power of arrest presently comes to an end at the termination of the marriage (1981 Act, s 15(2)), though the section 9 of the Bill will substitute for that provision a period of three years. The equivalent provision for civil partners (2004 Act, s 114(3) - relevant interdicts) is also to be amended by the Bill (schedule 1, paragraph 7). There is no time limit for cohabitants (domestic interdicts). Under the 2001 Act the court will specify how long the power of arrest is to last (which is to be no more than three years (2001 Act, s 1(3)).

Case for consolidation

75. Evidence received from practitioners, including the Law Society of Scotland, indicated that the Protection from Abuse (Scotland) Act 2001 has operated very well since it came into force, and that it deals directly and appropriately with all the matters dealt with by the other legislative provision. They concluded with a recommendation that these other legislative provisions be repealed.27 Scottish Women’s Aid expressed their strong support for the 2001 Act and called for the law in this area to be clarified in order to avoid confusion.28 In oral evidence, Professor Clive echoed the concern of Scottish Women’s Aid that the law has become too complicated and that people find it confusing and difficult that the sets of provisions are basically the same, but differ slightly in detail. He concluded, “let us have one act instead of four separate sets of provisions.”29

76. It seems to the Committee that the views of the Law Society, Scottish Women’s Aid and Professor Clive merit serious consideration. There is no doubt that the statutory law, contained in three separate Acts as described above, is complex. If it is true that the Protection from Abuse (Scotland) Act 2001 is operating satisfactorily and achieving all that these three Acts set out to achieve, then removing sections 8, 9 and 24 from the Bill, repealing the relevant provisions in the 1981 Act and the Civil Partnership Act 2004, would simplify and clarify the whole law.

77. The Committee, therefore, recommends that the Executive should consult legal practitioners, sheriffs, the police and other stakeholders as a matter of urgency with a view to simplifying this area of the law. The Executive should confirm its findings and intentions to the Committee.

Other domestic violence implications

78. Scottish Women’s Aid, in their written and oral evidence, expressed the view that various amendments to the 1981 Act proposed in the Bill would increase the vulnerabilities of women. Their first concern was the limitation in the period during which occupancy rights lasted to two years. We note, however, and welcome, the undertaking of the Deputy Minister to amend sections 4 and 5 to “stop the clock” when an action is raised.30 This may possibly meet the legitimate concerns of Scottish Women’s Aid.

79. The second concern raised by Scottish Women’s Aid was the amendment in section 5 which limits occupancy rights to claims against the spouse or a third party to whom the spouse transfers the house. However, we accept the policy behind section 5 which, as we understand it, is based on the fact that while a third party dealing with an entitled spouse can easily discover whether (non-registered) occupancy rights exist, a fourth party dealing with the third party, and a fifth party dealing with the fourth party (and so on) cannot do so as readily.

80. The Committee wants to ensure that the provisions in the Bill balance the rights of the buyer of a house with those of a spouse with occupancy rights to the property. It would be helpful if the Executive would clarify what protection exists in law for a vulnerable spouse if a matrimonial home has been sold on to a fourth or fifth party without his or her knowledge. The Committee also seeks clarity on whether the existing law is adequate to deal with situations where the transfer of the property to a third and then a fourth party is the result of collusion with the entitled spouse.

Parental Responsibilities and rights

Automatic PRRs for unmarried fathers

81. In the Policy Memorandum to the Bill, the Executive states that “the policy objective [of section 17 of the Bill] is to promote fathers’ participation with th eir families by providing that fathers who are not married to the mother of a child will automatically acquire Parental Responsibilities and Rights (PRRs) if they jointly register the birth with the mother.”31

82. The Executive recognises that the existing law in Scotland gives no automatic recognition to unmarried fathers other than th eir child support obligations32 and that this does not adequately reflect the reality of families in Scotland today. The Policy Memorandum indicates that updating the law to reflect the reality of family life in Scotland today is one of the three core principles that guide this reform of family law. Furthermore, the Executive states that, in line with another core principle of promoting and supporting stable family relationships, its view is that a child is entitled to the loving involvement of both of its parents in its upbringing.

83. At present, unmarried fathers can acquire PRRs by marrying the mother; making a Parental Responsibilities and Parental Rights Agreement (PRPRA) with the mother, known as section 4 agreements as they are provided for by section 4 of the Children (Scotland) Act 1995 (“the 1995 Act”); obtaining a court order under section 11 of the 1995 Act; or (after the mother’s death) by being appointed by her as guardian under section 7 of the 1995 Act.

84. Section 1 of the 1995 Act describes parental responsibilities as the responsibility to:

  • safeguard and promote the child’s health, development and welfare;
  • provide direction and guidance to the child;
  • maintain personal relations and direct contact with the child on a regular basis; and
  • act as the child’s legal representative.

85. These responsibilities apply until the child is aged 16 years, with the exception of the responsibility to provide the child with appropriate guidance, which applies until the child is aged 18 years.

86. Section 2 of the Act defines the parental rights which allow a parent to fulfil these responsibilities. The rights are:

  • to have the child living with the parent or otherwise to regulate the child’s residence;
  • to appropriately control, direct or guide the child’s upbringing;
  • if the child is not living with him or her, to maintain personal relations and contact with the child on a regular basis; and
  • to act as the child’s legal representative.

87. In broad terms, the Executive describes having parental responsibilities and rights as entitling a parent to take major decisions relating to the child, such as on schooling, on where they live and on medical treatment.33

88. Despite the ability to acquire PRRs by virtue of section 4 of the 1995 Act, research shows that few unmarried fathers in Scotland have a legal relationship with their children. The Committee is aware that since their introduction by the 1995 Act, the number of section 4 agreements has remained low compared to the number of children born to unmarried parents, even where the parents jointly registered the birth.34 Similarly, the Policy Memorandum refers to a 2003 survey, which found that 95% of respondents who were currently cohabiting fathers had no parental responsibilities and rights order or agreement in relation to their children. The SPICe briefing states that “these low figures are likely, at least in part, to be attributable to a low level of public knowledge about section 4 agreements and the mistaken belief that joint registration confers PRRs”.

89. This assertion was supported in evidence rec eived by the Committee . Family Mediation Scotland said that th eir employees’ experience of “working in the family mediation field is that many unmarried fathers do not realise that they do not have parental rights and responsibilities until a separation happens.”35

90. The Executive’s stated aim, therefore, is that where both parents acknowledge that the man is the father and where they jointly register the child’s birth then the father should be given the rights in order to allow him to fulfil his parental responsibilities. The situation where the mother does not consent and where joint registration is ordered by the court is covered by section 11 of the 1995 Act. The Executive’s proposal will confer PRRs on an unmarried father where he and the mother jointly register the child’s birth; or where either one of the parents attend the registration, but has a statutory declaration made out by the non-attending parent.36

91. The Committee considers that the Executive should make it clear that entries in the Register of Amendments which have the effect of altering the information originally given at registration of the birth have the same force as if the information was provided at the outset.

92. Respondents to the Executive’s Family Matters consultation document expressed the majority view in support of conferring automatic rights on unmarried fathers (75%). The Policy Memorandum cites some reasons for the positive responses as promoting the involvement of the father in the upbringing of the child and as addressing the perc eived current unfair discrimination against fathers.37

93. There were, of course, some less positive responses. The views were expressed that fathers should have to marry the birth mother to be entitled to PRRs and that automatic provision of PRRs undermines the ‘family unit’. There was also a concern that fathers may take advantage of th eir new rights whilst shirking the accompanying responsibility, which gave rise to suggestion that some consideration should be given to ensuring that absent fathers fulfil th eir responsibilities.38

94. Evidence rec eived by the Committee was on the whole supportive of the Executive’s proposal, although in some cases, there was a suggestion that the proposals did not go far enough. The predominant view, however, was clearly that relationships between children and th eir fathers should be encouraged, where this is in the best interests of the child. Indeed, the Committee is firmly of the view that the welfare of the child should be at the centre of the Bill.

95. Children 1st said in oral evidence:

“It is clear to us that when both parents are willing to play a proper role in th eir child's life, the father's role should be recognised. Nearly half of all children born in Scotland today are born to cohabiting, rather than married, couples… Many children are b eing brought up without contact with th eir father. It is important that fathers' rights are extended.”39

96. Similarly, the Roman Catholic Church and Families Need Fathers placed an emphasis on the importance of joint parenting.40 In its written evidence, Families Need Fathers stated that “we believe this is an overdue step in the right direction. Children have two parents, and they surely have a right to have both parents recognised in law.”41

97. On a separate point, the Law Society of Scotland said that one advantage of giving PRRs to unmarried fathers is that “in the very small number of cases where a mother dies, the father will have the automatic right to continue to look after his children and will not have to compete with other family members.”42 Despite the infrequency of such circumstances, but considering the conflict that can arise from them, the Committee believes that such situations are best avoided and should be addressed by the Bill.

98. Although it broadly welcomed the proposal, Families Need Fathers indicated that it believed PRRs “should be automatic for all fathers, by virtue of th eir b eing fathers”.43 The organisation’s view is that the role of unmarried fathers in the family is not sufficiently recognised in legal terms and that in conferring PRRs on fathers would go some way to addressing this perc eived inequality. This was a standpoint shared by the Family Law team at Balfour and Manson Solicitors, Edinburgh, who said in th eir written evidence:

“ A child has the right to know and have a relationship with both parents. Enabling a mother to determine the quality of that relationship by means of a registration process is insulting to the father and the child. We believe that it is only a minority of cases where it may be inappropriate for an unmarried father to have parental responsibilities and parental rights. In the unlikely event of a father seeking to enforce his rights in such a situation, for example, where a child has been conc eived following a mother having been raped, the court would be able to exercise its discretion in the matter. If one of the other core principles guiding these reforms is to update the law and reflect the reality of family life in Scotland today then the unmarried father, whether in an on going relationship with the mother or not, is part of that reality and should not be treated any differently from the mother.”44

99. One of our witnesses, Gary Strachan, agreed with the suggestion made by Families Need Fathers, saying that “It is wrong for one parent automatically to get parental rights and for the other not to.”45

100. In preparing the Bill, the Executive considered the alternative approach of conferring automatic PRRs on all biological fathers without the need for joint registration. It did, however, strongly refute this option as the Policy Memorandum explains:

“It would not be fair to women who had suffered a trauma such as rape, or had become pregnant as a result of a casual liaison then had to go to court to have PRRs removed from the father. Scottish Ministers believe that some evidence of commitment to joint parenting such as the joint registration of the child’s birth should be required before a man gains PRRs.”46

101. In oral evidence to the Committee, the Minister also said:

“I understand what Families Need Fathers are saying and I understand some of the frustrations of people who wish to play a full role in th eir child's life. However, a simplistic or crude approach to the issue would not necessarily be helpful.”47

102. The Committee welcomes the extension of PRRs to unmarried fathers. The Committee is of the view that the legislation should encourage the development of a structure of family law in Scotland that provides for the protection of children and support of the family. The Committee accepts that automatically granting PRRs to biological fathers could be to the detriment of existing arrangements. The Committee, therefore, believes that the Executive’s approach of using the ethos of joint registration as the determining factor for conferring PRRs is the right approach.

103. The Committee notes that it is the joint registration that is the trigger for the conferral of PRRs. The Committee believes that where there is agreement between the parents, PRRs should be conferred automatically and that where agreement does not exist an unmarried father will, as at present, have the option of claiming them via the court process under section 11 of the 1995 Act.

Retrospective application of PRRs

104. The Executive believes that the automatic conferral of PRRs should take effect only in relation to the registration of births made after the legislation is brought in to force (i.e. PRRs will not be applied retrospectively). The Executive consulted on this issue48 and ultimately decided against giving automatic PRRs to unmarried fathers who are registered on th eir child’s birth certificate prior to the legislation coming in to force.

105. In the Policy Memorandum, the Executive argues that:

“It would be inappropriate for parents who had registered the birth of th eir child on the basis of one set of legal consequences then to find that subsequent legislation had materially changed those legal consequences. In addition, there is a need to protect families whose arrangements had already been settled by courts, it would not be in anyone’s interests to re-open such cases.”49

106. The Committee has rec eived a range of views in both its oral and written evidence in relation to the matter of conferring PRRs retrospectively, which appears to be a more divisive issue than the conferral of automatic PRRs on future registrations.

107. The Law Society of Scotland argued forcefully against making the proposals retrospective. It supported a view similar to that of the Executive, that it would be unfair to change the basis on which a mother has made her initial decision to allow the father to register himself as such on the child’s birth certificate.50

108. Alternatively, Families Need Fathers expressed the view that PRRs should be conferred universally on all biological fathers and, therefore, argue that PRRs should be applied retrospectively. In recognising the concerns raised by Family Mediation Scotland and Stepfamily Scotland in relation to circumstances involving conflict or domestic abuse, Families Need Fathers suggest that in such cases PRRs could be easily removed by means of a straightforward mechanism that was designed to keep any additional upset to a minimum.51

109. In formulating its position on the issue of retrospection, the Committee also considered the suggestion made by Alison Cleland that by not making PRRs retrospective would remain contrary to international obligations under Article 8 of ECHR and the UN Convention of the Rights of the Child for a further 16 years. In evidence to the Committee on this point, the Minister said:

“We would not introduce any legislation that was not compatible with our European obligations. Such compatibility is a prerequisite of any legislation. We gave careful consideration to the matter and we believe that we have struck the right balance. We do not believe that we have infringed our wider responsibilities.”52

110. In considering the evidence rec eived on the issue of retrospection, the Committee is of the view that it would not be appropriate to legislate in this way. This could have the effect of requiring mothers to go to court to seek the removal of PRRs from a father simply in order to restore the status quo. The Committee agrees with the position taken by the Executive on this issue.

Domestic violence – rebuttable presumption

111. The Committee rec eived some evidence reflecting the concern that women and children should be protected from inappropriate contact with an abusive father holding PRRs. This led the Committee to explore the possibility as to whether a rebuttable presumption against contact in cases in which domestic abuse has occurred should be inserted in to the Bill. Both Stepfamily Scotland and Scottish Women’s Aid said that they would support this suggestion.

112. In oral evidence, Scottish Women’s Aid said:

“The Children (Scotland) Act 1995 is a very good piece of legislation and provides for domestic abuse to be taken into consideration. Unfortunately, that is not happening. Many women and children are b eing put at risk and are not safe because the 1995 act is not b eing interpreted in a way that takes account of other factors. The legislation would be fine, if only it were adhered to. Introducing a provision such as a rebuttable presumption would make the courts look at the situation, rather than ignoring all the other evidence that they could consider.”53

113. Professor Eric Clive, however, was not convinced that the inclusion of such a provision in the Bill would add anything, saying that:

“The presumption that it is not in the child’s best interests to be ordered to have contact with a person if there is a danger of physical or mental domestic abuse does not add much to the law. The welfare of the child is already the paramount consideration [of the 1995 Act].”54

114. This is a view reflected by the Law Society of Scotland who warned that by inserting a rebuttable presumption on this matter in to the Bill could actually act to interfere with the current provisions of the 1995 Act.55

115. In considering its position on this matter, the Committee is also aware of a number of other issues that could arise from the inclusion of such a rebuttable presumption. In introducing a presumption this raises the question of whether other presumptions could be added as well, which suggests a prescriptive approach and potentially undermines the flexibility of the court in determining on a case-by-case basis what “the best interests of the child” actually should mean, in terms of residency and contact in individual cases.

116. The Committee also considers that a rebuttable presumption could act to encourage people to make allegations where they may not have done so otherwise, or to exaggerate them. The Committee believes that in such cases a presumption of no contact would not necessarily be a fair reflection of the suitability of either parent to continue to have a relationship with their child. Importantly, there is also the issue of what degree of proof would be required by the court in order to judge the validity of such allegations. The Committee invites the Executive to consider whether guidance to the courts would be of assistance in this area.

117. The Committee fully recognises the seriousness of domestic abuse and the damaging effects that this can have on children and the wider family. The Committee does not wish to diminish the effectiveness of current legislation in such cases. The Committee accepts, however, that the Executive has made a firm commitment to consider this matter further and requests that it respond to the Committee on the outcome of these considerations.56

Post separation parenting and other issues arising from discussions on PRRs

118. During its discussions on PRRs the Committee has had regard to some wider issues that, although not specifically covered in the Bill as introduced, the Committee considers are significant to its understanding of the general principles of the Bill. These issues encompass:

  • post-separation parenting and whether there should be a presumption of an equal division of parenting time between mother and father, or if the emphasis should be on the quality of time a child spends with each parent;
  • whether PRRs, once obtained, have practical effect; and
  • enforcement of PRRs

Equal parenting time

119. On the issue of whether there should be a presumption of equal parenting time (i.e. a 50/50 split of time between parents), the Committee received a range of views. In the main, it was accepted that the quantity of contact between parents and children does not necessarily correlate with the quality of that time.57 Children 1st asserts that a 50/50 split of parenting time is not necessarily in the best interests of the child, and that they would seek an agreement, perhaps through family conferencing where the child’s input would be included, to be made on the basis of the individual circumstances.58

120. This view is reflected by the representatives of the Australian Parliament House of Representatives Committee on Family and Human Services when it discussed the issues as part of its video conference with the Justice 1 Committee. The Australian Committee felt that such a presumption “would mean that people would spend a lot of time in court proving that the other parent was unfit so that equal time would not be automatically awarded”.59 They also stated that in framing proposals for reform of family law in Australia “we wanted to remove adversarial situations, set up parenting plans and remove the rebuttable presumption, which is based on people's self-interest in respect of what they can get out of the breakdown of a relationship”.60 Evidence rec eived by the Australian Committee during th eir inquiry suggested that:

“some people thought that they would be forced to take their children for 50 per cent of the time, when their lifestyle may not be set up to do that. They thought that, if they decided not to take the child for 50 per cent of the time, they would be seen not to want to spend that time with their children when, in fact, it was their work habits and lifestyle that precluded it.”61

Primary Care Giver

121. The Committee also heard evidence that it is important for a child to have a solid relationship with a primary care giver, particularly in the early years of his or her life and that this would not support the presumption of equal parenting time.62 The Committee recognises that the primary care giver could equally be either parent, or indeed any adult, who plays a significant part in the child’s upbringing, but that the child should also have the opportunity to have a relationship with both parents.

122. In evidence to the Committee Families Need Fathers accepted that there should certainly be a consideration given to the quality of time spent with parents, but argued that there was a minimum quantity of time at which quality time becomes possible. The organisation’s view, which was supported in principle by Gary Strachan,63 is that there should in fact be a presumption of equal parenting, starting from a 50/50 standpoint, which could then be re-arranged appropriately, depending on each individual’s situation.64 They argued that this presumption would indicate that the law recognises the equal importance of both parents. In an attempt to make this absolutely explicit in the legislation, Families Need Fathers also suggested that there should be inserted into the Bill the clear right of a child to maintain relationships with both parents and the wider family after separation.65 This was not a view that was widely accepted by other witnesses from whom the Committee sought comment. For example, the Law Society of Scotland suggested that the 1995 Act makes sufficient provision for a child to have contact with both parents, where this is in the best interests of the child. Under the 1995 Act, “the absent parent has a responsibility to maintain contact with the child. The 1995 Act gives a corollary right to the child to have contact. There is also a corollary responsibility on the parent with care to make contact possible.”66

123. In relation to post-separation parenting, the Committee is of the view that the emphasis should rightly be placed on joint parenting as it believes that it is generally in the best interests of a child to benefit from a continuing relationship with both parents. However, the Committee considers that were a presumption of equal parenting time to be added to the Bill, this would not necessarily meet this objective. The Committee agrees with the Executive that it would not wish the legislation to constrain the court by creating a presumption of an equal division of parenting time were that not in the child’s best interests.

Quality of contact arrangements

124. However, the Committee is convinced that when determining access arrangements, it is essential for the court to consider the quality of the access which a non-resident parent can have with their child and the benefit which the child will derive from that access. The Committee is clear that there is a minimum amount of time in which meaningful and beneficial contact can be maintained. Ideally the court would not be required to regulate such access arrangements, they would be agreed between the parents and the child incorporating a degree of flexibility to allow changes in circumstances to be accommodated. The Committee acknowledges that the ideal is not always achievable and in situations where courts are required to intervene parents should be encouraged to accept arrangements which allow the child to spend quality time with the non-resident parent.

Practical effect of PRRs

125. One of the concerns of fathers’ groups is that non resident parents who have obtained PRRs have difficulty in applying them and are therefore not able to be as fully involved in important aspects of the child’s upbringing as they would wish to be. The anecdotal evidence that the Committee heard was that the practical implementation of PRRs is not as straightforward as was intended in the 1995 Act. Section 6 of the 1995 Act provides that any person, before making a major decision in relation to a child that involves the exercise of th eir PRRs, should consult any other person who holds PRRs in relation to that child.

126. The specific evidence of one non-resident parent was that he had found that the reality of PRRs was very different from what he had believed to be the case.67 To him PRRs meant that he could become involved in making decisions on issues of education and health care in relation to his child, but his experience has reflected that the application of rights is patchy as are the interpretation and understanding of what the rights mean. Families Need Fathers also referred in oral evidence to the difficulties experienced by many fathers who had been married (and therefore have PRRs), but who are experiencing difficulties in maintaining a relationship with th eir children after separation.68

127. The Committee’s concern was that different public authorities in different parts of Scotland may take inconsistent approaches in th eir dealings with non resident parents. The Committee therefore wrote to the Ministers for Health and Education to ask what guidance is issued to health boards and education authorities on how to deal with requests by non-residential parents to exercise their PRRs.

128. In its response, the Executive states that it has not issued guidance to health boards on this matter. The Executive does, however, indicate that it is currently drafting guidance on the rights of parents and children to access a child’s health records, which the Health Department will issue to enquirers.69 In relation to access to information pertaining to a child’s education, the Executive states that it has not thought it to be necessary to issue guidance to education authorities “because education authorities are aware of th eir responsibilities and have tended to promulgate, as necessary, th eir own local guidance to headteachers and schools on the matter.”70

129. It is important to note that the 1995 Act was intended to encourage joint decision making of both parents in the best interests of the child. It is not clear to the Committee how effective the 1995 Act has been in achieving this. It is vital, therefore, that everything that can be done is done to ensure that the spirit of the Act is entered into in all cases.

130. It is in this context that the Committee wishes to register strong concerns about the Executive’s response to these issues on a number of specific points. The Committee is alarmed that it appears that health boards have rec eived no specific guidance on the exercise of PRRs during the 10 years since the 1995 legislation was passed. It would appear that the drafting of such guidance is only now taking place. The Committee, therefore, urges the Executive to finalise this guidance and to disseminate it to all health boards as a matter of urgency.

131. On the basis of the Executive’s letter in relation to education authorities, the Committee is concerned that there would appear to be scope for significant variation in approach between local authorities. The Committee considers that the current approach means that it is unacceptable for such post-code variations to exist. The Committee’s view is that this approach does not sit comfortably with the Executive’s stated intention of introducing a fairer and more coherent way of providing children with a robust support structure. The Committee urges the Executive to consider its position on this matter.

Enforcement of PRRs

132. An issue that is linked to the difficulties associated with the application of PRRs is the problem of how to enforce PRRs and contact orders. A clear concern was expressed to the Committee that the two sanctions available to the courts – fines or imprisonment – are not effective in resolving situations where a breach has occurred. This is because the breach of a contact order is a contempt of court, punishable only by these sanctions. It appears to the Committee that courts will encourage, cajole or even threaten resident parents to comply with the terms of a court order but that the bottom line is that the court will not actually penalise the resident parent because it would not be in the best interests of the child’s welfare to do so.

133. During the course of its inquiry, the Australian Parliament House of Representatives Committee on Family and Human Services identified the difficulty in enforcing contact orders granted by the court. The position in Australia, described below, appears to be similar to the Committee’s assessment of the situation in Scotland:

“There are sanctions and a range of what I guess I should call punishments—including imprisonment—that have been passed by Parliament. We can imprison a person for not providing contact with a non-resident parent and for continually not complying with the law. The situation is very difficult. Magistrates and judges do not like to order into prison a mum or dad who is not complying with an order because they do not think that that is in the best interests of the children. It has been put to us time and again that we need just one courageous judge or magistrate to say, "You will go to prison for denying your child the reasonable right to know both its parents", unless there are mitigating circumstances such as domestic violence or emotional, mental or sexual abuse.”71

134. These difficulties were also expressed by Family Mediation Scotland who said that even where the court grants contact orders, that by itself does not promote contact between a parent and a child, because there are many ways in which a resident parent who wants to resist contact by their former partner can make difficulties.72

135. Families Need Fathers suggested that compulsory parenting education and community service orders could be introduced into statute as possible sanctions, which could take place whilst the child was spending time with the other parent. Families Need Fathers’ overriding view, however, is that there should be an importance placed on providing assistance through parenting plans at the point of separation with the aim of avoiding the imposition of any sanctions and court orders in the first place.73 This is the view held by Stepfamily Scotland, which recommended the tactic of the early intervention of mediators at the point of separation before the relationship becomes too deeply embedded in conflict.74

136. The Committee’s impression is that in a very small number of cases, resident parents appear able to wilfully ignore a decision of the court. The Committee recognises that there are no easy solutions to this problem – the Committee is not aware that any jurisdiction has been able to find an effective enforcement mechanism in those cases where acrimony persists between the parents.

137. The Committee believes that speed is of the essence when it comes to dealing with child-related legal actions, for example where the court has granted access for a non-resident parent by way of a contact order but that this order has been breached meaning that the non-resident parent is being denied access to the child.

138. The Committee is aware that the sheriffdom of Glasgow and Strathkelvin operates a specialist family court which has enabled sheriffs in that jurisdiction to develop considerable expertise in this increasingly complex area of the law and also a deep awareness of inter-related social issues (including domestic abuse) that often form the backdrop to the cases which come to court. The other advantage that the Committee sees in specialist family law courts is the speed in which they are able to operate.

139. Some members of the Committee had the opportunity to meet with Sheriffs who work in the specialist family law courts. The Committee considers that this system has much to commend it and recommends that the Executive / Scottish Court Service investigate the practicality of developing a Scotland-wide system of specialist family courts, utilising a pool of experienced and specially trained sheriffs (perhaps on a roving basis).

140. The Committee believes that contact centres can perform a valuable function as the first step in allowing contact between family members where relationships have broken down. The Committee notes that most organisations consider that the best way forward is to concentrate on early intervention measures which are designed to prevent relationships from deteriorating to such an extent that couples resort to going to court (the process of which, itself, tends to exacerbate matters). Parenting agreements have been positively referred to in this context and it is therefore appropriate to address the Executive’s proposals on this subject next.

1 Policy Memorandum, para. 4

2 Written submission from the Scottish Executive (19 April 2005), see Volume 2, Annexe D, 18th Meeting, 2005 (Session 2), 1 June 2005.

3 Policy Memorandum, para. 84

4 Bruce McFee and Margaret Mitchell dissented from this conclusion.

5 Scottish Law Commission, Report on Family Law (1992) para. 7.2

6 Ibid., para. 7.4

7 This phrase is commonly used as synonymous with “cohabitation” and that is its sense here. Technically in law, however, a common law marriage is a marriage, albeit by cohabitation with habit and repute: but it brings all consequences of marriage including the need for divorce.

8 Policy Memorandum, para. 59

9 Written submission from The Law Society of Scotland, see Volume 2, Annexe D, 17th Meeting, 2005 (Session 2), 25 May 2005.

10 Justice 1 Committee, Official Report, 25 May 2005, cols. 1928-1929. (All references to “Official Report” refer to the Justice 1 Committee Official Report unless otherwise stated.)

11 Supplementary written submission from the Scottish Executive (16 June 2005), see Volume 2, Annexe D, 18th Meeting, 2005 (Session 2), 1 June 2005.

12 Policy Memorandum, para. 27

13 Ibid., para. 26

14 Ibid., para. 24

15 Ibid., para. 25. The Executive refers to a wealth of research being available, for example Together and Apart: Children and parents experiencing separation and divorce, Joseph Rowntree Foundation.

16 Ibid., para. 33

17 Official Report, 11 May 2005, col. 1807

18 See, for example, Major Alan Dixon’s evidence, Official Report, 11 May 2005, col. 1791

19 Official Report, 11 May 2005, col. 1819-1820

20 John Fotheringham, Official Report, 25 May 2005 col. 1948

21 Official Report, 11 May 2005, col. 1788

22 Mrs Kay Hull, Official Report, 25 May 2005, col. 1902

23 Morag Driscoll, Official Report, 25 May 2005, col. 1949-1951

24 SPICe briefing Supplementary note on matters arising out of meeting Justice 1 Committee on 16 March 2005 (‘bigamous' civil partnerships and religious divorce), paper no. J1/S2/05/13/7.

25 Written submission from Ephraim Borowski, Scottish Council of Jewish Communities, see Volume 2, Annexe D, 14th Meeting, 2005 (Session 2), 11 May 2005.

26 Policy Memorandum, para. 79

27 Written submission from The Law Society of Scotland, see Volume 2, Annexe D, 17th Meeting, 2005 (Session 2), 25 May 2005.

28 Official Report , 18 May 2005, cols. 1886-1887

29 Official Report, 25 May 2005, col. 1921

30 Written submission from the Scottish Executive (19 April 2005), see Volume 2, Annexe D, 18th Meeting, 2005 (Session 2), 1 June 2005.

31 Policy Memorandum, para. 37.

32 Parents have an obligation to provide financial support for their children under the Family Law (Scotland) Act 1985 (c 37) and the Child Support Act 1991 (c 38).

33 Official Report, 16 March 2005, col. 1612

34 Scottish Parliament Information Service (SPICe) Briefing 05/13 refers to the number of section 4 agreements: 1998 – 229; 1999 – 335; 2000 – 331; 2001 – 395; 2002 – 397; 2003 – 502; and 2004 – 571

35 Official Report, 11 May 2005, col. 1824

36 Policy Memorandum, para. 38

37 Policy Memorandum, paras. 51-2

38 Policy Memorandum, paras. 53-4

39 Official Report, 18 May 2005, col. 1842

40 Official Report, 11 May 2005, col. 1793 and 18 May 2005, col. 1864

41 Written submission from Families Need Fathers, see Volume 2, Annexe D, 15th Meeting, 2005 (Session 2), 18 May 2005.

42 Official Report, 25 May 2005, col. 1959

43 Official Report, 18 May 2005, col. 1862

44 Written submission from Balfour & Manson Solicitors, see The Scottish Parliament website (reference at end of contents page).

45 Official Report, 1 June 2005, col. 1977

46 Policy Memorandum, para. 47

47 Official Report, 1 June 2005, col. 2006

48 SE consultation (2000) – 56% against retrospective application. However, a third of respondents took a different view.

49 Policy Memorandum, para. 49

50 Official Report, 25 May 2005, col. 1958

51 Official Report, 18 May 2005, col. 1862

52 Official Report, 1 June 2005, col. 20106

53 Official Report, 18 May 2005, col. 1894

54 Official Report, 25 May 2005, col. 1926

55 Official Report, 25 May 2005, col. 1946

56 Official Report, 8 June 2005, cols. 2042-3

57 Stepfamily Scotland, Official Report, 18 May 2005, cols. 1864-5

58 Official Report, 18 May 2005, cols. 1846-48

59 Official Report, 25 May 2005, col. 1898

60 Official Report, 25 May 2005, col. 1899

61 Official Report, 25 May 2005, cols. 1899-1900

62 Official Report, 18 May 2005, cols. 1845-46

63 Official Report, 1 June 2005, cols. 1980-81

64 Official Report, 18 May 2005, cols. 1864-65

65 Official Report, 18 May 2005, col. 1863

66 Official Report, 25 May 2005, col. 1946

67 Official Report, 1 June 2005, cols. 1974-78

68 Official Report, 18 May 2005, col. 1861

69 Supplementary written submission from the Scottish Executive (17 June 2005), see Volume 2, Annexe D, 18th Meeting, 2005 (Session 2), 1 June 2005.

70 Ibid.

71 Official Report, 25 May 2005, col. 1905

72 Official Report, 11 May 2005, col. 1826

73 Official Report, 18 May 2005, col. 1865

74 Official Report, 18 May 2005, col. 1866