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Item 3 is consideration of the Family Law (Scotland) Bill. I am delighted to welcome Dr Claudia Martin of the Scottish Centre for Social Research. This is a key time for the committee to look at the centre's findings, given that we have just completed stage 1 of the bill and are about to move to stage 2, when we might decide to take further evidence. It is pertinent that we have the opportunity to look at the research that has been done. Dr Martin, I invite you to make a brief presentation to the committee, after which members will ask questions of you.
Thank you for inviting me. I am here instead of Dr Fran Wasoff of the centre for research on families and relationships. She was the senior author of the study and has substantive expertise in the area; my role was more methodological. I am the research director at the Scottish Centre for Social Research. We are an independent social research organisation that is run not for profit and we aim to carry out research that can inform the development of policy.
Thank you. That was very interesting.
Dr Martin, your summary was helpful because it is difficult for us to get the time to study such surveys in depth. I was interested to hear your comments on the way in which you ensure that your survey covers a representative sample of the population. When we are talking about legislation, particularly on family law, we should be aware that that representation is not mirrored by members of the Scottish Parliament—we should always consider the views of the general population.
We did not necessarily ask the same questions in 1999. However, there are some comparable questions in other Scottish surveys and in the British social attitudes survey. In general—without wanting to commit myself to figures, because I do not have them in front of me—I think that there has been a shift towards what we might call a more liberal view of the rights and obligations in various circumstances. There is also a greater knowledge of the law. Comparing the 2000 and 2004 surveys shows that more people seem to know what the law is and therefore to appreciate that it is not necessarily in line with their attitudes.
Were there any surprises?
There are many differences between men and women. Those differences are not huge or pronounced, but they are consistent. On the whole, women seem to have a rather different view. That was the biggest surprise.
My questions are about your methods rather than your conclusions. First, to what extent are your methods—in general and in the 2004 survey in particular—peer reviewed?
Very much so. The reports are published widely and papers are written. The surveys for both England and Wales and for Scotland have been running for a long time and they form a cornerstone for a lot of policy thinking and development. They are peer reviewed to the extent that published papers arise from them and those papers are reviewed methodologically.
So the peer review is a little indirect, but in essence the approach that is taken is the academic one of openness and preparedness to answer for the method and to be subject to scrutiny.
Absolutely. The data are also available for secondary analysis.
Okay. Of necessity, you are looking at the status quo and the status quo ante. To what extent does that enable you or others, including us, to project forward and predict the effect of changes that might be made in the law?
There are a few things bundled in that question.
It is a difficult question, but it is meant to be.
The data suggest that the changes that are being proposed are in line with public opinion. There is awareness that the law is not in line with the current situation in Scotland or with current attitudes.
Do you therefore conclude that the survey should suggest—I use that weak word deliberately—that the public are prepared to contemplate changes in the law to allow it to catch up with attitudes or to set a new framework for further change in family law?
In as much as research can ever make that kind of claim, our research would seem to suggest that people support the changes—
Does it suggest that people would support changes in general, if not necessarily specific ones?
I cannot answer that. I would say that there is a preparedness for a shift, because there is an understanding that the law is not necessarily in line with current attitudes or the prevailing configuration of relationships. However, the response is not uniform. One never gets 100 per cent; there are always variations in the population. Research is about understanding such variations.
I have just one more technical question. You said that you selected randomly from within your group of 1,600.
No. Sorry. There was a random sample of 1,600 throughout Scotland. There were randomly selected households and within each household there was a randomly selected informant.
Sure. Then you normalised against the profile of the population.
We wanted to ensure that the data took account of the fact that, for example, in rural areas the numbers are small. We weighted our data to ensure that in the final results they were represented appropriately.
What confidence level do you seek to achieve?
That varies. The results that I have reported were all statistically significant at less than the 0.01 level—one in 100.
So it is well above the one in 20 that you would seek as a minimum.
Absolutely. Any of the results that I have said might be significant are at that level; some are at much higher levels.
So the word "significant" is used in its scientific, statistical sense.
I mean it statistically.
I think that you said—I did not make a note, unfortunately—that you selected 84 people for in-depth questions.
No.
In that case, I will surrender the baton to a colleague.
There are no in-depth questions in the sample. Sorry.
No, no. It is perfectly possible that I misheard.
Good morning, Dr Martin. I refer you to table 2.3 of the survey.
I may not have the same version as you.
I hope that the tables are the same. It is the one about financial support.
Is it one about an unmarried couple who have been together for 10 years and have no children?
Absolutely. You asked:
We did not give a definition. The question was about whether the person should have a right to financial support; it was asked initially in relation to the breakdown of marriage. The understanding was that the support would be alimony of some sort.
I am trying to establish whether financial support means on-going maintenance or a one-off payment. The bill distinguishes between the two types of support and I am trying to see how far your report is relevant to the bill. There is a set of assumptions in all your questions, which is that we are talking about an unmarried couple who have been together for 10 years and have no children. Those assumptions are not used in the bill, which is not written on the basis of that scenario. I am trying to see to what extent your research and what is in the bill marry up.
We did not give the respondents a strict definition of financial support. The more that definitions have to be given in a questionnaire, the less good the questions are. People seemed to understand the term "financial support". We were considering the underlying right to something after a breakdown, whether it was in the form of a lump sum or continuing maintenance. The question was whether there should be such an obligation or right.
In table 2.3, 40 per cent say that that obligation or right definitely should or probably should exist, and 57 per cent say that it definitely should not or maybe should not exist.
Only 50 per cent believed that such support should follow from the breakdown of a marriage. That surprised me.
That was the surprising statistic for me, too.
An important point has been raised, which I would like to clarify. Bruce McFee asked about the definition of financial support and you said that you did not give a definition. Your question included the specific term "lower income". Under the financial provisions in the bill, the property that the parties have accrued during the term of the marriage or cohabitation is divided between the parties. Were people asked about that? That would be a different question. The provisions in the bill do not consider the parties' relevant incomes and seek to even them up; they split what has been acquired during the marriage. Would there have been a different response to the question if income had not been mentioned?
I tried to explain some of the limitations of the survey approach. This type of embedded survey has to compete with other modules and only a certain number of questions were funded. We can ask only the number of questions for which there is funding. Had the Scottish Executive or any other organisation wanted to ask such questions in more detail, it would have had to agree them in advance. The questions were determined with the broad involvement of those who were connected with the process; they were not developed in isolation.
We can understand the limitations to which you were subject while you conducted the survey. My concern is about whether we can extrapolate your results and fit them nicely with the bill—I hae ma doots about that.
We do not deal with pensions. Different pension schemes have different requirements.
That is correct—that question cannot reflect what is in the bill, because pensions are outwith the Parliament's remit. I just wanted to touch on that.
Yes. The claimant can inherit a proportion of the estate once any children have received their settlement.
So the bill would not necessarily allow an automatic transfer of the house to the partner.
I was going to say that that is not my area.
I understand that.
I will ask a quick supplementary to Stewart Stevenson's question about the methodology. Dr Martin used the word "significant". Is 1,600 not a small sample?
It is, but that is all right so long as the sample is representative.
There was a 61 per cent response rate from the 1,600.
That is a 61 per cent response rate from a sample that was compared with the profile of the population as a whole.
Sorry, I am smiling because my colleague Stewart Stevenson is quoting figures at me. Since your opening statement, he has been working out exactly what 61 per cent of 1,600 is.
The figure is not 61 per cent of 1,600; 1,600 was the achieved sample.
It is useful to clarify that point, but I have to say that you caused Stewart Stevenson extra work.
I am sorry. If I had had PowerPoint I could have put up the figures, but I was told that I could not use PowerPoint. Do you want some figures? I can bore you with figures, but they are all in the report.
It might be useful to provide the figures, but that is fine. I wanted to clarify that issue.
The picture is complex. People's knowledge of the law is always complex. Two thirds of respondents are aware that cohabitants have fewer rights, but they were not asked to specify all the rights. One cannot assume that people have a sophisticated understanding of the complexities of law, especially if they have not had to deal with the situation themselves. If someone has come face to face with the issues, they may well have a better knowledge and understanding of the situation.
Do you agree that the 51 per cent of people in 2004 who thought that common-law marriage exists were not entirely wrong, and that the issue of whether people think that they are in a common-law marriage is a different question?
We did some analysis of the results by people in different relationship configurations, but I do not have the figures in front of me; the figures got quite messy and we started to get into the numbers game, which one must always be careful about. A sample base of 1,600 is good when one is dichotomising by age, gender or qualification, but once we start to break up the results even more, the numbers become messy.
Yes, but such information would be useful. Although people might not use the right terminology, there is such a thing as marriage by cohabitation with habit and repute, which is what people probably refer to when they talk about common-law marriage—the 51 per cent of people were right that the concept exists. However, the issue of how many people think that they are in that state is a different question. We are interested in that, because we are considering whether to abolish the rule about marriage by cohabitation with habit and repute. We would welcome figures on that matter, if you have them.
We asked people what their situation was. If they were living with someone but were not married to them, we asked how long they had been living together. I would have to look at the results again, but I will take a note of the question if you would like me to explore the issue.
On that exact point, will you confirm that a substantial majority of the people in the sample realised that cohabiting couples have fewer rights than those who are married have, even though 51 per cent believed that people could gain more rights through common-law marriage, which does not exist.
You assume that people's attitudes are completely coherent in all sets, but they are not. That is one of the interesting features of our survey—many of the questions tried to get at core values rather than what might strictly be called attitudes, because attitudes are complex.
Is it correct that more than half of those who were surveyed believed in something that does not exist in law?
When people were asked whether unmarried couples who live together for some time have a common-law marriage that gives them the same legal rights as married couples have, 51 per cent said that they do.
I wanted to establish that, because the issue is important.
Is it true that the various scenarios that were posed were fairly uncomplicated and straightforward and that there were no competing rights in the scenarios?
Yes. It is important that respondents to surveys do not feel stupid, so that they can give their views and answers without feeling that they are going to be caught out. There is a limit—a survey must be aimed to meet the ability of the vast majority of the population. If we carried out more detailed work, we would look only at one issue and construct more complex scenarios.
One of the bill's core principles is safeguarding children's rights. However, in intestacy law, cohabitants may acquire rights, the result of which may be a scenario in which the child's share of the estate is adversely affected. As that scenario was not put to the representative sample, with how much confidence can we say that the bill reflects attitudes, when attitudes about such competing interests have not been tested? Sadly, life is not easy and straightforward—complex issues and competing interests are more likely to be the norm.
The attitude survey was never intended to deal with such complexities—it attempted to get at core values and attitudes. For example, it asked about marriage and then asked about a range of different scenarios. Marriage sets the norm, as it were, for the values and we can then consider attitudes that follow on from that. The more detail that we go into with the scenarios, the more complex the picture becomes.
I recognise that, but from our point of view, as legislators whose fundamental position is that we do not want to do anything to undermine marriage, the fact that we have not been able to probe that little bit further is frustrating.
I am afraid that that is a matter for you to take up with the commissioners, not with us.
Absolutely.
You said that the Scottish Executive funded 20 of the questions that you asked. Does that mean that the Executive gave you the text for the questions?
No. Absolutely not.
You got to decide what the questions were.
The Executive had a role in the development of the questions, but we had a steering group of people who are closely involved not with the policy but with the application of law, including academics, to help us to develop the questions.
I just wanted to check that.
That would need longitudinal research, but I think that both things are true. There is what we would call a cohort effect—there are generational differences that reflect the different experiences. The under-40s have grown up in a different moral and social climate to that in which the older group grew up.
Do you think that, as the younger people that you questioned get older, their views will stay the same and not change with age?
There is always a shift in people's views as their life experiences alter, but I would expect the cohort effect to carry right through.
I challenge the assertion that the younger generation have become more liberal. In table 2.11, on whether the economically weaker partner should receive financial support from the other partner if their relationship has broken down, your evidence is diametrically opposed to that assertion. If the couple are married, 39 per cent of 18 to 39-year-olds say that the economically weaker partner should receive such support, whereas 56 per cent of over-40s hold that view. The same trend is repeated in the figures for all four questions.
It depends on what you mean by liberal.
Am I being liberal with the term "liberal"?
I think that the figures are a reflection of the shift in women's experiences and backgrounds. There is now an assumption of women being independent.
Fine. I understand where that comes from. However, the evidence shows that there is less support, in the younger age groups, for financial support.
Following the breakdown of a relationship.
Yes.
Not following the death of a partner.
No; the results for the questions on death are quite different. Such a huge majority of people are in favour of the surviving partner receiving support that the age breakdown makes little difference. However, in table 2.11, the younger the respondent is, the less likely they are to favour financial support.
It is what we call a cohort effect. It reflects the changing experiences of women in terms of their opportunities, education and expectations. A lot of women would argue that the younger people's response to that question represents a liberal view.
Did you ask any questions in the survey about the value of marriage?
There was a set of questions about attitudes to marriage and relationships in general. I even made a note of it.
Is that table 6.1?
Yes. From there onwards, you will find attitudes towards sexual relationships in various circumstances. People were asked a range of questions about the value and role of marriage and about the role of different kinds of sexual relationship. There is a series of tables on that.
I want to get something on the record on that point, because it relates to the bill that we are considering.
What sort of information do you want? It depends on the attitudes that are expressed in response to the questions.
Based on the survey, is there any evidence that people regard marriage, or indeed a civil partnership, as a relationship that is more important than any others?
My interpretation of the data is that there is continuing support for the role of marriage. That is particularly the case with respect to children. Marriage is seen as the superior relationship, as it were, for bringing up children. Nevertheless, there is no denigration of those who are not married, if that makes sense. In 2004, nearly 50 per cent of people agreed with the statement that
My next question is on step-parents. Mike Pringle, too, has an interest in step-parents in relation to the bill. It was interesting that your survey showed that people thought that step-parents should have financial obligations but, correspondingly, that they also thought that step-fathers should have access rights.
There was a view that, when a step-parent is caring for a child, they have an on-going financial responsibility. If there was a result that surprised me, as a step-parent, it was the view that a step-parent's income should influence the natural father's financial obligation. That quite surprised me, but it is there.
The committee has had loads of correspondence about issues that are not contained in the Family Law (Scotland) Bill, but which are big social issues. One of those issues is access rights—we shall call them rights for the purposes of the debate—for grandparents. You have commented on that, which is quite interesting. Your survey seems to suggest that there should be rights for grandparents. That is the first time that I have seen in writing an acknowledgement that grandparents on the paternal side are at the heart of the problem.
That question was carefully framed, but the caveat that I would give is that it is one of the issues in which more detailed questions would have gone to the heart of that complex issue. That is exactly the point that you raised before.
My final question is about access rights for separated parents who do not have custody. The parent in question could be a father or a mother, but we have had lots of correspondence from fathers who do not think that the court system is fair to them or that they get the same rights to argue for custody as mothers do. Have any surveys been done in that area?
I do not know. I am sure that it is a continuing issue. That is where Dr Fran Wasoff would be able to help you. When she returns, I am sure that she will be able to direct you towards any relevant research.
So there might be some research on that?
There may well be research that could help you.
I have just a wee geeky question at the end. When you had normalised the 1,600 responses, what was the effective size of the sample?
It shifted upwards by about—I am sorry, I cannot remember the exact figures. I do not have them in front of me.
Upwards?
Yes, because of the increase for those in rural areas, for example.
So, you normalised the responses in that direction. I would have expected it to be done the other way.
It was done to ensure adequate numbers in order that the sample would be representative, which is always difficult.
So, you increased the weight of underrepresented subsets.
Yes.
Okay. Thank you.
Dr Martin, you made no comparison between people's attitudes to the rights of a parent and those of a step-parent. The point also relates to cohabiting couples. There is a lot in the bill about the rights of cohabiting couples, but those rights are not to be extended to step-parents. Did you make any such comparison?
I would have to look. We analysed the data to give the information that our funders required. The data exist: further analysis could be done if other people wished to do it or if the funding were to be made available. I am sure that specific topics could be explored further. We did not do that in this report, as it was getting very long already.
We have asked all our questions. The survey is valuable to the committee as we move to stage 2. There may be one or two issues on which we would like to come back to you if we need further information. On behalf of the committee, I thank you for your evidence.
Thank you.
I welcome our second panel: Alan Finlayson, who is a child law consultant; and Joyce Lugton, who is from the Scottish Executive's civil law division. Thank you both for appearing before the committee this morning. Alan Finlayson said that he would come back to talk to us—thank you for sticking to that promise.
If I may, convener I will first give a little bit of a health warning about my evidence: my area of expertise is not family law. Although I chaired the stakeholders group, and I am happy to field questions on that, it would not be helpful for the committee to ask me more general questions.
The draft parenting agreement is now with the committee. When I gave evidence previously, the convener expressed some concern—and I was a little worried, too—about my ability to produce it timeously. However, I have been able to do so.
Thank you for allowing us sight of the draft agreement—both the guide and the plan. That has been useful. I have read the documents, which seem to contain some commonsense measures. I understand that at times of separation and disagreement, common sense sometimes goes out the window and people need to be reminded of it.
That is correct.
It is also clear that it is not intended that the parenting agreement will be enforced by the court. However, you thought that there might be circumstances in which a court would look at it with a degree of expectation that an attempt had been made to fulfil the agreement, which might influence the court. The second paragraph of the introduction to the guide amounts to a pretty definite statement. Have you given further thought to whether a court might rely on a parenting agreement? Has your position been tested? Have you spoken to any members of the legal profession?
Indeed I have.
Have you spoken to any sheriffs?
I meet sheriffs from time to time, because I was a sheriff and, indeed, I am still an honorary sheriff. Every time I have met a sheriff over the past three months, I have tested out my position on them and they have agreed with the reflection that I made in response to Mr Stevenson's questions when I appeared before the committee previously. They have said to me that, if parents who had agreed matters subsequently came to court and wanted to change an agreement, they would want to know what material change had taken place that would merit altering the agreement.
Right. We are quite clear that the court cannot enforce a parenting agreement, but would it not be more accurate to flag up to parties that were considering entering into such an agreement that a court may—I put it no stronger than that—be influenced by their signing up to it? I do not know what the implications of that would be, or whether it would make it more likely or less likely that an agreement would be entered into.
I am trying to avoid the courts altogether.
I understand your reason for wanting to do so.
The less I say about courts, the more I like the document. In light of the reflections that emerged in our previous discussion, I thought that I had better put in a health warning. It would be a balanced judgment as to whether that warning should be spelt out in more detail.
I invite you to reconsider the issue.
I am always considering it.
I am sure that you are. It is just that I am wary of a statement that appears to be quite definitive, but is not.
I appreciate your point.
I hear what you say and I know what your aims and objectives are. I have a question that is theoretical at this stage. Would you object if the Justice 1 Committee were to amend the bill at stage 2, if a way of referring to the parental agreement could be found? Would you be against that?
I could not possibly object to that.
I simply seek your opinion.
I hope that everyone will focus on parents reaching agreements by themselves. It is difficult to legislate for what courts might do in certain circumstances.
I will follow up what Bruce McFee said. In the second paragraph of the introduction to the guide, you say:
I have always considered that the parenting agreement could not be a legal contract. When parents enter into a minute of agreement that is registered in the books of council and session, courts cannot be bound by anything that has been agreed about the interests of children, because those interests may vary from day to day. I have never visualised the parenting agreement as being part of a legal contract.
I just wanted you to put that on the record.
May I say at the outset that the document has exceeded my expectations and that I am delighted to see it. However, there is an issue that I would like to explore, perhaps with Joyce Lugton rather than with Alan Finlayson. What do you think will be the level of educational attainment of parents with whom the document as it is currently worded is likely to fit most naturally?
I do not think that I am particularly well qualified to answer that question. However, one of the things that I have in mind is to run the documents through some kind of testing procedure in which people who are, or have been, in such a situation go through the documents with a view to seeing how useful they are and how they might be changed to be more helpful. That does not entirely answer your question, of course, but it would be quite difficult to run an IQ test before people read the documents.
I accept that. Indeed, the language that is used in the documents is substantially more accessible than that which is used in many documents. However, it would be useful, in the interests of ensuring that they are fully used, to simplify the language further. Perhaps you could use American software that can tell you what school grade a piece of writing is suitable for. In any case, the testing that you have described is important in that regard.
On that sentence that you do not want us to focus on, I should say that I have an appalling record for writing sentences that are far too long. I recognise that, even though, obviously, I do not do as much as I should to rectify the situation.
On accessibility, it is essential that the documents are available in different formats, such as cassette tape. That would be an easy way for people to access them. The parental agreement is lengthy, although I accept that it is in plain English. The long sentence that Stewart Stevenson quoted, on which we are not focusing, is important. It is crucial that its meaning is clear.
I could have split it into three sentences.
That would be a good idea. It would also be good for the agreement to be available in formats such as Braille and in other languages. We must consider that, because it could be used widely.
I liked how the guide uses quotes. The quote that struck me most is on page 7:
My task was only to write the agreement. The responsibility for what happens to it is the Executive's and not mine. However, I entirely agree with the principle. There is no point having an agreement unless it is properly and widely available. Discussion of that issue could incorporate questions about who might be required to assist—some people will not need assistance, but others will.
I welcome the realistic and commonsense approach that the two documents take, as well as their flexibility in recognising that there are different family situations in which the presence of both the children's biological parents is not the norm. How early would people enter into a parenting agreement? For example, would that happen when divorce proceedings are initiated?
It should not happen when divorce proceedings are initiated. Many people ought to enter into agreements whether or not any legal process is attached to the situation. I regard the time of separation as the important point. Indeed, some in the stakeholders group suggested that, before a couple comes together, they should sign up to such an agreement. However, we rather took the view that most people enter into a relationship with a bit more optimism than that and that it would be wrong to have an agreement at that point.
I was a step ahead. I was thinking that the earliest point at which an agreement would be entered into would be the point of separation. The assumption in the bill is that people go straight into mediation after separation. However, that often does not happen, and one of our criticisms is that provision of conciliation services is not adequate.
I do not know that I can go much further than I did when I spoke about the agencies that will assist. I have raised the possibility of the agreement being available in public libraries, doctors' surgeries, citizens advice bureaux and social work departments. Anyone who made the agreement available would be able to assist.
A third person being present with both parties could take the heat out of a situation and could help to channel discussion. It is a question of how early that could be done.
Family Mediation Scotland, for instance, would be very pleased to get involved at that stage of the proceedings. It would prefer to get involved early rather than too late.
Couple Counselling Scotland is also an option. Thank you. That is very helpful.
The discussion is certainly helping me to firm up my own view about the importance of the agreement. Although the witnesses might think that what they say is so obvious that it does not need to be restated, their remarks are important in reminding us that the best chance of parents or guardians entering into an agreement is during the separation period when people are still talking.
You would hardly expect me to disagree with you.
I do not.
All I would say is that that is someone else's responsibility and not mine.
I did not want you to go away thinking that perhaps I did not approve of your approach: it is an excellent document. I feel very positive about it. However—as with Stewart Stevenson, there is always an however—my concern is that we must ask you to prepare a second stage for parents who have not come across the document early enough or who, because of their circumstances, are already in battle, in order to help them to resolve the difficulties that their children face. Children must be able to continue to have the support of both parents.
It is difficult to give a definitive answer. If people cannot be helped to reach agreement, I do not know how you can make them reach agreement. That has always been one of my worries. In cynical moments while I was preparing the agreement, I thought to myself that those who need the agreement will not obey it, and those who do not need it will just go ahead anyway, so what am I doing?
I have to be clear and say that the agreement is very helpful. We are talking about a time that is traumatic for many people, and being able to focus on the plan in the agreement will assist many of them. It is very positive. However, I accept that I am asking the unanswerable.
In all my previous careers, I have worried greatly about children who are left in situations such as you describe. From experience, I know that it is much better for the future of the children if parents can be helped to reach agreement. I also know about children who get caught up in the middle of intractable situations that go on and on and on. I have not been able to solve that one yet, but if another crack at it might do it, I will have a go.
Come back and tell us if you do.
That was a pertinent question. I agree with Mary Mulligan that an agreement such as the one in the document—if it is widely available and is taken seriously—will at least increase the options that are open to parents. As a result, the number of couples who cannot reach agreement might decline a little.
I tried to avoid the standard format lest it produced a standard family, as it were. I have tried to reflect the fact that many different people might be important to a child. For cases in which the children are not old enough to express a view, we have tried to reflect the fact that the question is important for parents to consider.
That makes perfect sense. However, if the parents of a three-month-old baby cannot agree on who is important to the baby—the grandmothers or grandfathers, for example—that cannot be shown on the diagram.
If they do not agree, they do not agree. The diagram is in an agreement, which means that they have agreed.
They may have agreed, but I presume that you accept that, ultimately, the person with whom the child has residency will have more power in the discussion than the person with whom they do not reside. Is it fair to say that, if the person with whom the child resides does not agree that the grandparent is important, that will not be recognised? If the young child, who cannot speak for himself or herself, has residency with one parent, and there is no agreement about which relatives are important to the child, does not the parent with whom the child resides have most power in the decision? That parent may make a decision that is against the interests of the child. My worry is that an agreement would not solve the problem.
One of my difficulties is that I cannot think who could sign the agreement on behalf of the three-month-old child.
Yes. However, the importance of the agreement is that if a dispute goes to court and a contact order is sought, it would be legitimate for the sheriff to refer to it.
I have tried to indicate that the agreement is relevant regardless of whether the bill eventually includes a requirement on the courts to have regard to it. I have reflected on the situation before now. One of the most significant advances under the Children (Scotland) Act 1995 is the development of child welfare hearings. Sheriffs have taken on board the principles of the 1995 act and are endeavouring to operate them within the context of child welfare hearings, which are not attended by the public. They are trying to get resolutions by having people sit around a table.
We are all repeating ourselves to some degree. We are trying to resolve certain issues and it is important for us to be clear about which issues we can and cannot resolve.
My question goes back to the issue with which we started—the status of the document. I am unhappy about a document that may acquire a status that is unclear. I am pondering Pauline McNeill's question about whether reference should be made to the agreement in the legislation. Is it intended that the document should be lodged somewhere?
No.
So if Mr and Mrs X decide when they are separating to sign up to an agreement and there is one copy of it—
Each of them would get a copy.
So there is no intent to lodge the agreement anywhere. My concern is that the agreement is great for those who want to work out their problems but not for those who sign up to it for a quiet life or with the intention of doing the exact opposite. There is nothing to pull such people back into line because there is no sanction and I am concerned that that devalues the document. I do not have the solution; I only pose the question.
I keep coming back to the basic premise: unless the parenting agreement helps people and they own what they sign up to, it will not be worth the paper that it is written on. The intent is to try and get parents to do just that, and the document, frankly, is as far as I thought I could take it.
The stakeholders group was interested in the fact that children's needs change over time. A parenting agreement that is signed when a child is six will not be of much relevance when the child is 12. Children's needs change in all sorts of ways, partly in relation to their financial needs and partly in relation to whether they still want to see the same people in the same ways. That is relevant to the setting in stone that might happen if a document were lodged.
I accept that. The idea of lodging the agreement is not to set matters in stone. I am aware that anything involving children is a moving target and that, by the very nature of the child, the agreement will have to change as they grow. I am thinking more of a case in which somebody clearly wants to break everything that has been agreed and says, "I might have signed up for four hours per fortnight but I am actually going for 14 days." There will always be changes and the agreement will grow and mature but that will be done by consent. My concern is that the status of the agreement will be low.
That is a matter for the committee to consider at stage 2.
As we have returned to the contract, I will ask a couple of questions on that. On page 21 of the draft parenting agreement, under the space for the signatures, is the following disclaimer:
Yes. I agree with that.
That is almost a test of whether it is a contract or not. However, notwithstanding the fact that the disclaimer says that there is no legal commitment—and bearing in mind that to make legal commitments on such matters might cut across other parts of the legal provisions that surround what is going on—it nonetheless has legal implications that will be taken into account later in other parts of the legal process, including the courts. It is a legal document and it has legal implications. It has that force whatever we choose to do with it. Is that understanding correct?
Yes. On that, and keeping it to a short sentence, one could perhaps add to the agreement the phrase, "It may have legal implications."
We have not discussed where we are going with the charter for grandchildren. Joyce Lugton said that the children's commissioner will use children's focus groups. What do you see at the end of that? Will we end up with a grandchildren's agreement, just as we have a parenting agreement? Alan Finlayson may also wish to comment.
We are not going much further than the document as it stands. It is just a document that will provide some guidance and comfort to people in difficult situations. It will also provide a template for the kinds of relationships and understandings that will be helpful to children. It is not designed in the same way as the parenting agreement—it is not to be signed or anything like that. It is just a document that people can read to help them. The intention is that it will be widely available in the usual places—citizens advice bureaux and so on.
We would be interested in receiving feedback from the work with focus groups.
Certainly. We would be happy to write to you to let you know how it is progressing.
Do you have any idea of the timescale? We will soon be going into stage 2, and it might be useful to know the outcome of that work.
We hope to set up focus groups fairly quickly—within the next month or so—but I would be happy to undertake to come back to you before stage 2.
That would be helpful.
Two members have questions, but before I call them, are there any other questions on the grandchildren's charter? Is your question on that subject, Margaret?
No, it is not; it is on the parenting agreement.
I have one question on the grandchildren's charter. As you will know, there has been a lot of discussion about the role of grandparents. Committee members and other elected members have been lobbied heavily by grandparents groups, who feel that they should have rights. Have you taken any soundings as to whether those groups are happy with the content of the charter for grandchildren?
The steering group had two members from Grandparents Apart self-help group, and they were happy with the document that emerged. In particular, they were happy with the change in focus from grandparents to grandchildren. They have lobbied you, and we have seen a copy of the lobbying document; it would be fair to say that they would like to go further, but they are happy with the document as it stands, which they feel reflects well the relationship that they would like to see between grandparents and grandchildren in separation situations.
We received evidence earlier on the social attitudes survey. One thing that came out of that was something that we had already assumed, which is that grandparents on the paternal side are the ones who feel most aggrieved, for reasons that you will probably know. Has there been any incorporation of that into the grandchildren's charter? Is it a factor at all?
The charter does not distinguish between paternal and maternal grandparents. I am quite sure that the scenario that you describe will be the more common but, in the case of two of our regular correspondents, it is the maternal grandparents who have been excluded from having a relationship with their grandchildren. The document is completely non-discriminatory on that point.
I turn to a practical point, going back to the parenting agreement and the matter of signatures, which Bruce McFee was discussing. The copies of the agreement are to go to both parents. Are you going to allow copies of the agreement to go to the children as well, given the importance of ownership? I am thinking about pupil agreements in school, which are signed in that way. That is really important for the young person, who could perhaps be as young as six or seven. If the child had ownership and knew exactly what should be happening, that would apply huge pressure on both parents.
As it stands, the parenting agreement provides for children to sign it. If someone is a signatory, they should get a copy. The question of who would arrange for copies to be given to the various parties is another matter. It would certainly be helpful for children who are signatories, and for children in other cases, to have a copy and to be involved in general.
I suggest that there should be an extra page for more signatories. You would have a signing page for a standard family, with two parents and two children. Lots more people might want to sign it.
Has any consideration been given to incorporating a timetable for the purposes of checks and balances? It has been suggested that people could sign up to the agreement simply to pay lip service to it, without having much intention of following that through. There will also be cases in which they are not prepared to sign up initially. Is there any provision for bringing the parties back after a month, for example, to review the situation and see how it is working, so that we are not necessarily waiting until the situation has broken down before there is intervention? I am aware that if that proposal were considered, there would be a certain amount of pressure on the courts. Would you favour one of the proposals or suggestions that we have been examining under the bill for specialist family courts, involving sheriffs who have a particular expertise in family law?
I will start, although Alan Finlayson might also wish to come in. If we were to focus on timing, reviewing, having a month's grace and so on, that would deal with the document the wrong way round. It is supposed to be a self-help document, not something that is imposed from outside: that approach would not feel right.
I was not thinking of anything really draconian, but of a much more informal setting, where people might be asked, "Right, we're a month into this. How have we all been doing?" The family law court and the sheriffs who have expertise in the area might be more sensitive to such a change of emphasis.
There will be varied situations and varied solutions to them and, no doubt, varied non-solutions. The document is not supposed to be prescriptive; it is supposed to be an aid. I would not like to speak on the question of family law courts—that is something that the committee might wish to ask my minister about, rather than me.
Does Alan Finlayson have a view on the family law court?
Before we go to that question—which I am not going to answer, although I will find a long-wound way of dealing with it—I draw the committee's attention to page 22 of the guide. It contains questions such as:
You would make an excellent politician.
At one time, it was suggested that I should act as a fly-in sheriff for various places. People thought that, as one who ought to know something about child law because of my background, I could just fly off to Lochmaddy or wherever. Although that might sound attractive, my complete lack of knowledge about the culture of Lochmaddy—or Banff or Buchan or wherever it might be—would have detracted from that. There are pluses and minuses; I have no doubt that those will be made clear to the committee by a number of agencies and individuals.
Joyce Lugton pointed out to Margaret Mitchell that the parenting agreement is a self-help document. I do not disagree that many parents who do not know what to do should have a self-help document that gives them something to focus on, but I believe that the state is entitled to go a wee bit further in its expectations of parents. If we genuinely agree that the focus should be on the child, I do not see why we cannot go further by saying that if parents forget the interests of the child, they will be expected to look at the document. I would be disappointed if the parenting agreement was seen only as a self-help document that could be taken or left. If parents forget that the focus should be on the interests of the child, some pressure should be put on them by suggesting to them that they have an obligation to sit down and consider what is in the child's best interests in the current situation. However, I know that those two things need not be mutually exclusive.
Mr Finlayson's point about the family law courts is an issue that the committee discussed when we went to Glasgow to speak to people about the situation there. I appreciate that people should not be parachuted into an area with which they have no connection. However, it has been suggested that there could be a circuit of such courts. That would allow people to visit a number of places regularly and to build up knowledge of, and a relationship with, an area. Could that work or are you still dismissive of the idea?
I will not be drawn any further.
Okay.
There are no further questions. We have had a very valuable session and we are grateful for the work that the witnesses have done. The committee agrees that both the charter and the parenting agreement are high-class pieces of work, on which we congratulate you. As you will see, we have more work to do on how our committee might assist you in taking on that work. I thank you both for coming to give evidence to us this morning.
Thank you. Personally, it has been a privilege for me to be able to discuss critical issues with the committee.
Our fourth and final agenda item is to consider, in private, whether to request that the contract for our adviser on the Family Law (Scotland) Bill be extended.
Meeting continued in private until 12:10.