Justice 1 Committee, 23 Jun 2004

Meeting date: Wednesday, June 23, 2004

Official Report 117KB pdf

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Children (Scotland) Act 1995

Item 5 is the Children (Scotland) Act 1995; Frazer McCallum from the Scottish Parliament information centre is with us for this agenda item. I refer to the paper prepared by the clerk, which sets out the response from the Executive on access rights to children in the context of its current consultation on family law. There is also a note by SPICe on the use of mediation in the United States, Australia and the Netherlands. I invite the committee to consider the response.

On the use of mediation in relation to access to children, the minister makes the point that mediation usually involves agreement by both parties that they will take part; in effect, where there is such agreement, mediation is currently available. When we discussed the matter previously, what was in my mind was that there should be more stringent obligations on guardians and parents to participate in a non-court forum in the first place. I take the point that mediation may be the wrong word, because if that word is used, the agreement of both parties is being sought. I feel that a mechanism in the system should force guardians and parents to sit down and discuss the welfare interests of the child and, as far as possible, take the matter away from the court.

If someone wants to adjust any provision that is made by a court, it is necessary for them to go back to court and go through the whole process again, and that carries a financial burden. The court does not monitor whether access arrangements are being adhered to, so if they are not, it is necessary to go back to court. Something needs to be put in place to make the system much more oriented towards the welfare of children.

It is possible that the committee will deal with the proposed family law bill. There will be an opportunity—regardless of which committee considers that bill—for some of the issues contained in the petition to be raised.

Irrespective of whether the Justice 1 Committee or the Justice 2 Committee considers the bill, the most appropriate place for the issue to be discussed is in the context of the bill, rather than in isolation. The matter is very important and it is obvious that it is of great concern to a large number of individuals. However, the issues would get the best airing within the context of the proposed family law bill. Much more evidence could be taken and there could be much more in-depth analysis of the matter at that point.

I would like to emphasise the matter by writing to the Minister for Justice in the light of the correspondence that we have received regarding access rights for fathers. We should seek a specific commitment that their position will be considered following the deterioration of the relationship with the mother. Much has been said about grandparents and the wider family, but it would be worth while pinning down the issue of fathers, which is contentious.

The forthcoming family law bill is the appropriate context in which to look at ways forward. The convener has mentioned mediation, whether formal or more informal, and ways of facilitating it. The interests of the child or children are paramount in whatever structure we come up with. As the family law bill is imminent and we will be the committee to interrogate it, that bill will provide the appropriate context in which to discuss such complex and traumatic issues. We could make use of some of the excellent background notes on international experience that SPICe has provided us with; there seems to be a range of ways to approach the subject.

In relation to Margaret Mitchell's question about the consideration of fathers' rights, I note that the response from the minister says that the consultation

"will include the position of parents—including fathers—who are unable to resolve disputes without going to court."

I favour that inclusion, but I agree with Bill Butler that the matter is at the heart of the forthcoming family law bill. As part of our consideration, we were asked by Grandparents Apart Self Help to consider the position of grandparents. I take the same position in relation to grandparents as I do to the system in general, which is that any person who enhances a child's life—whether they be a grandparent, father or anybody else—should have another forum in which they have the chance to make their case. The minister says in her letter that that is what the forthcoming bill should be able to address. I assure Margaret Mitchell that her points are already being considered.

I agree that the matter should be considered in the context of the forthcoming family law bill, largely because many of the issues are interrelated. There is always a danger that, if we consider one issue in isolation, it will impact on another aspect of family law. The point that Margaret Mitchell raises is covered by the proposals on the family law bill, so it would be best to consider that point and others collectively rather than individually.

I think that we are agreed that all the issues that arise on access to children under the 1995 act and the result of the original petition on grandparents should be referred to the consideration of the forthcoming family law bill.

We have been dealing with the petition, so we have some background knowledge. If the family law bill goes to the Justice 2 Committee for consideration, may I assume that we will pass our comments and background notes to that committee?

That is a good point. If we do not deal with the forthcoming family law bill, it might be helpful to summarise all the points that were made during our deliberations and to pass on that summary to the Justice 2 Committee. That would be sensible.