Children (Scotland) Act 1995
Item 4 is on access rights under the Children (Scotland) Act 1995. Members have a paper that the clerks prepared, which gives the background to petition PE124, from the Grandparents Apart Self Help group. The committee decided in a previous discussion that the petition raised wider issues that it wanted to take further.
The committee considered the matter most recently on 8 October. I recollect that all members of the committee were sympathetic to the petition, but that, frankly, it was difficult to see what could be done in relation to existing legislation. We agreed to write to the Executive to ask it to give serious consideration to the matter in the context of the forthcoming family law bill. The response that we received from the Minister for Justice was quite encouraging. She says that she shares our concerns and that the Executive
"will consider in the context of our forthcoming consultation what actions may be helpful in improving the position."
I would like the committee to consider not simply noting the Minister for Justice's commitment, but writing to her to acknowledge her sympathetic tone and comments, to say that we look forward to the publication of the family law consultation paper and to show strongly our continuing interest. We may also wish to consider option (b) in the clerk's paper, which suggests writing to the minister about the associated issue of the position of a father following the deterioration of his relationship with a mother.
I strongly support option (b), because there is a gap in the circumstances that it deals with. I am pleased to see the action that it proposes, which I support.
I too support Bill Butler's suggestion. I understand that when the minister announced the proposed family law bill, the intention was to provide fathers and mothers with the same legal rights if both were named on a birth certificate. It is not clear whether that would apply retrospectively, and people who are campaigning now might have views on that. However, if the provision were to apply retrospectively, that could create a range of problems. In pursuing option (b), we could ask whether it is intended that such a provision would apply retrospectively.
I support what other members have said. Grandparents' role in children's development is important. The subject has been a source of much sadness to constituents of mine who have approached me about the issue. Safeguards must be put in place. Occasionally, it might be in the child's best interests to maintain contact with a set of grandparents even if it is not in their interests to maintain contact with the parent. With safeguards built in, it will be important to pursue such a provision in the proposed family law bill.
As more than 40 per cent of children are born to parents who are not married, access rights for unmarried fathers must be examined in the family law bill. The bill will be complex. It will have to catch up with the world as it is, rather than the world as legislation sees it. I strongly support and welcome the minister's comments. We should do what we can in children's best interests at all times. For the most part, maintaining contact is in the child's best interests, unless good reasons exist for not doing that.
I agree with pretty well everything that members have said. We must differentiate grandparents' access from fathers' access. They are not the same, although both grandparents and fathers should have access rights.
Margaret Smith talked about dealing with the world as it is. I have concerns about going too far down the road of making a father's rights pre-eminent. Some fathers are abusive and a child's rights must be pre-eminent. In such cases, denying fathers access is often in the child's best interests. We should consider the rights of grandparents and parents—in particular fathers—but we must always remember that the child's rights are pre-eminent.
We need to be clear that it is about equalising the law for unmarried fathers, because, unless the couple is married, the man is not automatically deemed to be the father. Even in cases in which a married woman has a child by another male, the man who is married to the mother will be deemed to be the child's father regardless of whether he is, and it is for the other man to prove paternity. The Executive will attempt to equalise the law in its forthcoming family law bill. The issue is related to access, because it is harder for a father to ask for access rights if he is not deemed in law to be the father, but access is a separate and individual point.
If Stewart Maxwell is in any doubt about what I meant, I point out that, in the Children (Scotland) Act 1995 and other legislation, the rights of the child are paramount.
I draw committee members' attention to the letter from Sarah Boyack's constituent, because it contains issues that need to be addressed.
I also have an interest in the matter. I feel that it is about time that, in the first instance, determination of the child's welfare should be taken out of the courts. I think that we all agree that the child's welfare and needs are paramount, not who gets access. The first port of call in determining what is best for the child should be outwith the courts. I am pleased that the minister's letter acknowledges to some extent that mediation can play a greater role, but the question is whether the committee wants to go further and request that the structures of the law be changed to ensure that mediation would be the first port of call. I leave that for members to comment on.
The second issue that arises from Sarah Boyack's constituent's case is the cost of access. A primary concern about the system is that if someone believes that it is in the child's interest for them to have access, they can apply for the access rights under the 1995 act, but they have to be prepared to pay for that. We are hearing stories of the cost of access, which should not be prohibitive, because that is not in the child's interest.
In Sarah Boyack's constituent's case, there seemed to be competing court orders. Not long ago, we considered a European Union provision that was intended to ensure that, once an action had begun in a court in any European Union member state, another court could not begin a case for six months, but in Sarah Boyack's constituent's case, there seemed to be a contradiction between what the court in England had picked up and what the court in Scotland had started. There are some issues in that case that need to be tidied up.
I agree totally, convener. The child's rights and well-being are paramount, but I took option (b) in the paper and Sarah Boyack's constituent's letter to refer to a situation in which the parents' relationship had broken down and the mother was almost determined to exclude the father to the child's detriment. There are two aspects. In Sarah Boyack's constituent's case, because the mother moved away, two court orders competed: after a year and a day, the English orders took precedence over anything that had been decided previously in Scotland. Where both parents are still resident in Scotland and the mother suggests that there is a problem where there might be none, mediation is certainly the way forward, as opposed to going to the courts and trying to settle the matter in a formal, legal manner, so I support your suggestion on mediation.
I too support the idea of mediation. Perhaps we should write to the minister regarding petition PE124 and include a question asking whether the Executive has a view on the notion that legislation should prescribe some form of mediation in the first instance and whether it has considered legislating for that. That would be helpful indeed, because the Minister for Justice mentions mediation in her response, but I think that that is as a further option.
I agree with what Bill Butler has just said. As somebody who has used mediation in such circumstances, what I would say about it would be 95 per cent positive. Family mediation offers a much more child-centred, less combative approach all round. I hope that, a few years down the line, people can still feel that they have some kind of family, and that both parents will still be involved in the upbringing of children, which, I think, is the purpose of all this.
Mediation is much more likely to work when people want it to work and when they go into it genuinely thinking that, although their relationship has broken down, it is important to come out of the experience with an arrangement that is in the best interests of their children. If people go into mediation with that attitude, the chances are that it will be highly successful. If, however, they are forced into mediation by legislation, the circumstances would be totally different and mediation services would require much greater financial and other support. That would, to an extent, change the face of mediation as we have known it, and the level of people's involvement in mediation would be different from what it has been so far.
To reiterate, mediation can be highly successful when people are committed to it. I would be interested to find out whether there is evidence on that from other jurisdictions and, if there are countries where people are compelled to go into mediation before using the courts, to find out whether that approach works.
The points made by both Margaret Smith and Bill Butler are good additions to the discussion. I do not know whether resources would be available to us for looking at other jurisdictions, but we will investigate the possibility of getting a note on what we know about what other jurisdictions do.
Bill Butler emphasised the role of mediation, and I take Margaret Smith's point about mediation working only when both parties are willing to participate. The court's role is limited when it comes to access to children. The law is well intentioned, but experience has shown that the court route is somewhat cost prohibitive. If we were to try to think of another system that would be more accessible, the next obvious step would be to consider some form of arbitration, tribunal or something less costly. My paramount concern is that the system is cost prohibitive in this area of family law.
We can make all those points to the Executive. They are not mutually exclusive. At this stage, we are exploring possibilities, but we want to say loud and clear to the Executive that we think that further work needs to be done, and that we want to push the debate on a bit further.
I will try to summarise what we would like to do. We will obtain a note on what is being done in other jurisdictions on access to children. On PE124, the committee is agreed that there are issues for grandparents, but in the wider context of access to children. Some of the issues of access and costs that we have raised today should be helpful with respect to those raised in the petition.
Michael Matheson raised an issue about retrospection, which I think would be a fair point to put in our letter to the Executive in connection with unmarried fathers and access. The point has perhaps not been considered so far, so I do not have any difficulty with including it in our correspondence. We have discussed the role of mediation, and we are clear that the overriding principle, on the welfare of the child, should be as it is under the 1995 act. Is that agreed?
Members indicated agreement.
We should also thank the Minister for Justice for her sympathetic tone and comments and say that we are looking forward to developments.