Family Law Disputes
The final item of business is a members' business debate on motion S3M-1839, in the name of Nigel Don, on family law disputes. The debate will be concluded without any question being put.
Motion debated,
That the Parliament recognises that current arrangements for settling family law disputes could be improved and that current law still discriminates against parents who are not married; notes that parents can find it difficult or impossible to enforce contact orders where the other parent is unco-operative and that disputes where broken families live in more than one jurisdiction within the United Kingdom are unnecessarily difficult to resolve; further notes that these issues are particularly relevant due to recent cases in the north east; encourages current moves by Scotland's legal profession towards collaborative dispute resolution, and notes with interest the new system of less adversarial trials being developed in Australia.
I welcome to the debate members—I am grateful to see so many—and interested visitors in the public gallery. The motion is about how parents are allowed to resolve their differences when a family breaks down. I will highlight issues that cause huge resentment and describe an area in which the law and the courts are in danger of being ignored.
When families break up, I am glad to say that most parents agree on the care of the children, visits by the absent parent and all other matters that concern residence and contact. However, in a minority of cases, the situation is different. Extreme animosity or allegations of violence and abuse might be involved, or the parents might have such different ideas about what is best for the family that they cannot reach a settlement. That is why we need a proper family law framework and the means to enforce it.
The Children (Scotland) Act 1995 and the Family Law (Scotland) Act 2006 define parental responsibilities and the right of parents who do not live with their children to have contact. The 2006 act deals with unmarried fathers, but only those whose children's births were registered after 2006. The unmarried fathers of children who were born before then still have no automatic parental rights. That is a consequence of the difficulties in drafting acceptable retrospective legislation. However, an unmarried father has the opportunity to ask the court to acknowledge his parental rights.
I think that we would all agree that contact orders should be in the best interests of the child, which is what the law requires. We might not, however, agree what the best interests of the child are; it takes a skilled and experienced sheriff with a good understanding of family law to reach the best decision.
A recent study showed that sheriff clerks did not see the enforcement of contact orders as a particular problem. However, I suspect that I am not the only MSP to have been contacted by non-resident parents—usually fathers—who say that enforcing a contact order can be difficult. If the parent—often, but certainly not always, the mother—simply refuses to comply, it is hard to find effective remedies. The same study quotes a sheriff clerk who says:
"Sheriffs are reluctant to take action against a mother who flatly refused to obey a court order, with the case continued in the hope that she will eventually do so."
I am told that legal practitioners commonly hold the view that contact orders are difficult to enforce, and I find the conclusions of the research frankly surprising. I acknowledge, for the record, that there are cases in which it is the absent parent who is negligent in carrying out their part of the contact order. There is no question of wrong always being on one side in such matters.
It is also not unknown for separating parents to ignore the law. I wonder whether, sometimes, solicitors and courts are so fixated on the phrase "the best interests of the child" that they deny parents who have done nothing wrong natural justice.
This week, my constituent—I refer to him only as my constituent in order to preserve his daughter's anonymity—won a stunning victory in the Court of Session. Seven years ago, my constituent's wife unlawfully removed their child and took her to England. She did not let my constituent know her address and, worse, she falsely accused him of domestic violence and obtained the help of the local police and social work department, who seemed all too ready to believe her allegations. An English court then granted my constituent's estranged wife the right to live, with her child, in England. My constituent was not even told about the hearing. However, he found out where the child was going to school and went to see her, only to be arrested at the school gate.
No one wished to believe that my constituent was the person who had suffered the wrong. No one seemed prepared to accept that uprooting the child from her home in the north-east and denying her contact with her father and the extended family might not be in her best interests.
My constituent has now demonstrated that the English court acted without jurisdiction, that sheriffs erred in law, that his daughter was unlawfully abducted and that an unlawfully abducted child does not become resident in another country simply because she has been kept there for a year or longer. His divorce proceedings will now return to Aberdeen sheriff court, which will have some very difficult decisions to make. I hope that there is no difficulty in persuading English courts to relinquish jurisdiction, but that is yet to be seen.
One of the most remarkable things about the case was that my constituent represented himself before three judges in the Court of Session. He had to, because he could find no advocate able to take the case on. His persistence and—yes—his burning sense of injustice have helped to clarify the law, and I think that he deserves our thanks. I also give my personal thanks to Councillor Jimmy Black, a member of my staff, who has been assisting my constituent in the matter.
Sadly, my constituent's case is not unique. I met a distinguished family lawyer who told me that taking a child across a border can be an effective tactic. She said that although she would not advise someone to do that, it seems to work—at least, until now. I point out that it happens the other way around, as well. A glance at the internet turns up cases of parents in England complaining that their partners have come to Scotland to avoid the reach of the English courts.
How do we learn from my constituent's experiences in relation to cross-border jurisdictions and the ready presumption against fathers? I hope that the minister will address those issues in his closing remarks and, perhaps, subsequently.
If we do not want more such cases, in which there is a complete breakdown of the relationship, early resolution of family disputes is essential.
I recognise the Government's commitment to family mediation, and I commend the solicitors in Scotland who are developing the new concept of collaborative law, under which solicitors for the parties sort things out on the strict understanding that neither side will go to court. The position regarding legal aid for collaborative law is unclear. Perhaps that should be clarified, as the approach will save money overall.
I also note that mediation services are often funded from several different sources and are particularly vulnerable to fluctuations in funding, which is hardly the basis on which to build such an important part of our social service.
If it is true that the contact orders that courts make are widely ignored, we need to address that. It is not acceptable for one parent to make an unfounded accusation of violence or abuse against another and simply ignore a court order.
I recognise that such cases are always difficult, and there will be circumstances when court action is inevitable because animosity is persistent. The way forward is to promote methods of securing agreement between separating parties as early and as swiftly as possible. That is what mediation and collaborative law are all about.
I congratulate Nigel Don on securing the debate. This is an issue that I and many other members feel strongly about. As a former member of the Justice 1 Committee—I see that Margaret Mitchell, another former member, is here too—which scrutinised the bill that became the Family Law (Scotland) Act 2006, I welcome the debate, as the issue took up a great deal of committee time during the previous session of Parliament.
The issue of contact arrangements is complex, and although none of us can do it justice in the time that we have, I welcome the opportunity that Nigel Don has given us. During evidence sessions on the Family Law (Scotland) Bill, I heard many reasons why children did not have contact with both parents. Some reasons were good, and some certainly were not.
The good reasons included domestic abuse—and I would like to thank Scottish Women's Aid for its input to the Family Law (Scotland) Act 2006 and its briefing for tonight's debate. The organisation is right to say that contact arrangements should never put a child or the resident parent at risk of abuse. I support its continuing interest in enforcing contact when a parent fails to take an interest or to show up for contact arrangements.
Our response should be like Nigel Don's response: to make the interests of the child central. I hope that other members agree that in the majority of cases that means contact with both resident and non-resident parents. That is much easier to say than to deliver: following a relationship breakdown, perfectly reasonable people can unfortunately act unreasonably, so there is a role for the courts to issue directions on contact.
One way of providing for contact is through contact centres. After the Family Law (Scotland) Act 2006 was passed, I was pleased to take on the role of reporter to the Justice 1 Committee. I visited contact centres in Hamilton and Peterhead and was able to speak to some of the parents involved. I saw and heard the benefit of contact centres, but my report highlighted the fact that some areas did not have one; that in those areas that did, the centre was struggling to meet demand and provide a flexible service; and that funding was always an issue.
Despite the cross-party support for the report, the Scottish National Party Government has not taken any action so far on those challenges. I wonder whether the minister will tell us something more this evening. I said that resolving contact issues is complex, but the Justice 1 Committee put forward a suggestion to assist by establishing the role of court facilitators. We recognised that their role of overseeing contact orders needed to be worked out, so the then Minister for Justice, Cathy Jamieson, agreed to a pilot. Unfortunately, Mr MacAskill scrapped the pilot without making any alternative suggestion. We still await an alternative. I hope that the minister will be able to fill us in this evening.
I recognise that contact with grandparents is also a difficult issue. The Grandparents Apart group has done much to promote that, and I believe that if we resolve the problems between parents, we will go some way to reduce the problems for grandparents.
I believe that collaborative dispute resolution is a way forward; I spoke to lawyers in Aberdeen who told me how it could work. We need to invest in that. Mediation is an option, although it should never be forced on people. I hope that ministers will provide time for the Parliament to discuss such issues in more detail. Tonight is a beginning, and I hope that we will hear some suggestions.
I congratulate Nigel Don on securing this evening's debate on an important and in many cases heartbreaking subject.
If there are no problems with child contact, why are representations continually made by distraught families? Many of the people who contact me are dads and grandparents who are losing contact with kids. On the other side, I see mothers who are struggling to do what they see as right by their children. At first sight, the law appears to cover all the angles and the guiding principle of making decisions in the best interests of the child is correct, but real problems that require the Parliament's attention remain.
Some of us in the chamber will have experienced at first hand the pain that is caused when a parent suddenly and apparently without justification prevents further contact between a child and others in the wider family. I am certain that when there is a justifiable cause for that, such as violence or alleged violence, the law must protect the mother and the children from any risk, but what happens when there is no such cause and contact is prevented simply because of a disagreement between the families? In some cases, the child is used as a weapon in a dispute between the parents, or even a dispute between generations. We need to pay closer attention to such cases.
To date, my advice has been that the courts are there to resolve matters, but most parents and grandparents do not have the means to raise expensive court actions, so broken relationships deteriorate even further and, worst of all, the children suffer. Mediation helps, but both parties have to be willing to attend and to build bridges. If one party simply refuses to attend, we are no further forward.
Do we have a problem, or are such cases easily dealt with by the system that we have? Given my experience of cases that have come to me from parents and grandparents alike, and given the interest that is being shown by members and those in the public gallery tonight, I suggest that we do indeed have a problem to address.
What is the answer? I stress again that my comments relate to cases in which a parent prevents contact with a child for no apparent and justifiable reason. Surely we could have a mechanism whereby a complaint could be made, perhaps to a mediation service, that would at least trigger an interview or discussion. If necessary and if requested, the two sides of the argument could be presented separately so that an assessment and some recommendations could be made. That would help us to identify the type of cases that I am talking about and help to resolve disputes before they escalate.
Such a triggering interview would give people an opportunity to put their complaint on the record and it would mean that a case for preventing contact would also have to be stated and placed on the record. The recommendations that would be made would surely encourage both sides to focus on the best interests of the child and move away from the destructive path of continued dispute. The approach would offer a useful step—and one that is not in place at present—to help us recognise and deal with such cases.
The issue is too important to remain unaddressed. I hope—and am confident—that the cabinet secretary will consider it.
I, too, congratulate Nigel Don on bringing his important motion to the Parliament for debate this evening.
Family break-ups, separations and divorce are never easy and they impact particularly on the children of the relationship or marriage, even when the break-up is amicable and happens by mutual consent. When there is a dispute and acrimony, the effect on the children is harrowing and potentially deeply damaging. That is especially true when, as all too frequently happens, children become mere pawns in the dispute and one or both parents are intent on point scoring and being as awkward as possible.
The motion highlights some of the problems that arise. In some cases, one parent wilfully withholds contact with the children by the non-resident parent. In extreme cases, a parent unilaterally moves a child to another jurisdiction. I am pleased that the question of jurisdiction was moved forward yesterday by the judgment in the Court of Session involving the case of Mr B from Aberdeen, who had no contact with his daughter for seven years after she was taken to live in England when she was only three years of age. The ruling of the three law lords clarified the principle of jurisdiction in the question of which court can make a judgment when a child is unlawfully taken to live in a different part of the United Kingdom, thus depriving the other parent of contact.
The logistical problems of trying to maintain parental contact when large distances are involved might remain, but the judgment is a positive step forward that will be widely welcomed by all those who have experienced such trauma.
How best to deal with family disputes is a hugely complex question to which there are no quick fixes. One solution definitely does not fit all. A good starting place is the points of agreement: that the current situation could be improved; that any arrangements to manage and resolve such disputes should be child centred; and that, as the Scottish Women's Aid briefing for tonight's debate states, it is important that children have meaningful and supportive relationships with both parents.
The welfare of the children when a relationship breaks up is at the heart of the Family Law (Scotland) Act 2006. During the scrutiny of the bill, various measures were considered in an effort to ensure that parents, despite any differences that they might have, are united in and focused on the child's upbringing and future. Parenting orders were encouraged as a means of achieving that objective, along with the ideas of co-parenting and quality parenting time. How that is managed and achieved will depend on individual circumstances, but one hopes that it involves co-operation and getting the parents to think about the needs of the child, including the need to maintain a formal relationship with both parents.
There is certainly a place for collaborative dispute resolution, but when there is a history of domestic abuse any arrangement that is aimed at resolving the dispute must take that into account and ensure that the safety of neither the abused parent nor the child is compromised. In such situations, there is a definite place for parental contact being maintained through supervised contact centres. I pay tribute to Mary Mulligan's work in that regard.
The limited time available for tonight's debate does not permit the in-depth discussion that the motion merits, but I will conclude by stating that although I do not necessarily agree with all the assertions in the motion, I recognise and applaud the positive approach to family disputes that it seeks to promote.
Nigel Don has raised a substantial and pertinent issue and, as others have done, I congratulate him on the way in which he has done that. I declare an interest as a member of the Law Society of Scotland and as someone who dealt with quite a lot of matrimonial law when in practice. I am conscious that that was a little while ago, so my experience is probably a bit rusty.
An important point that has been made is the need to get agreement between the parties as early as possible. The sooner such things are resolved, the less likely it is that there will be difficulties further down the line: the more acrimonious the separation, the more likely it is that issues of child contact and upbringing will be dragged in.
We should distinguish between the situation in which a court has made an order that people do not like—obviously, there may be issues about that—and the situation in which a court has made an order that one party will not accept or agree to or obtemper. The two situations raise different sorts of issues.
There is much talk about rights. The part of the motion that I am least happy with is the claim that unmarried parents are discriminated against. The Law Society briefing states that it does not regard that as a significant issue in practice, and I agree with that. In any event, it should be remembered that the extent of the contact with the child in such situations is not uniform and can range from close parental contact in the case of long-term relationships to—in situations in which the child has resulted from a more casual encounter—no paternal relationship with the child. What should count as the priority in every situation should be the best interests of the child. That should be the starting point for analysis of what to do in any factual dispute that arises.
That said, it is—as others have argued—generally regarded as being in the child's interests to have a relationship with both parents. I can say emphatically from professional experience and beyond, that in a minority of situations, that is not desirable because of the abusive or manipulative attitude of one parent or, sometimes, of both parents. I agree entirely with Scottish Women's Aid that domestic abuse is neither a dispute nor a matter for resolution, at least in the context in which the issue is being discussed.
Real challenges arise when it is manifestly appropriate that the child should reside with one parent—more often than not the mother—but that parent adamantly refuses to allow contact with the other parent. Sanctions are available, up to and including imprisonment for contempt of court, but whether it is desirable to use those sanctions is the challenge that faces sheriffs and judges. In many such cases, one needs to consider whether it is seriously a practical proposition to lock up the custodial parent, with all the difficulties that that would bring about.
A number of cases cannot be resolved satisfactorily. Hard cases make bad law, even under the threat of court sanction. That does not mean that we should not try to use collaboration and mediation to help parents to resolve their differences in as many cases as possible. We should use the power and sanction of the court to bring about resolution and to warn people about the difficulties of not obeying court orders. That would be helped by changing wider social attitudes that stress the importance to children of both the parents, grandparents and other extended family; by using the grandparents code, which was touched on earlier, and which was developed during the previous parliamentary session; by couple counselling and by family mediation. The situation would also be helped if family law solicitors took a constructive attitude. An adversarial approach is not usually helpful: in fairness, the solicitor more often than not plays a valuable role in restraining the excesses of hostility in the client—I hear Christine Grahame agreeing with me—and in helping to focus them on adopting a more reasonable approach.
The motion refers to problems within the United Kingdom. The challenge is worse when a child moves with one partner to live in another European Union country or beyond. That can often mean that the intention of the original court order is thwarted. The minister might be able to give the chamber some insight into the potential for improving the resolution of cross-border disputes, but it will continue to be a difficult issue.
The motion raises a highly pertinent and complex theme with a lot of issues. I again thank Nigel Don for lodging it.
I endorse much of what Robert Brown said. I was a family lawyer for 12 years. I acknowledge his professional expertise and that of the Cabinet Secretary for Justice.
This is a difficult area of the law and we have to tread carefully because there are no simple answers in the hard cases, as my legal colleagues will know. We are dealing with heightened human emotions: people are irrational and are sometimes not open to discussion or to advice that is sincerely given to calm things down.
Most relationship break-ups are not a two-way street; one party decides that the relationship is at an end and, although they might feel guilty, they feel liberated. They might be moving on to someone else, which certainly exacerbates the break-up. The other party feels betrayed, angry, hurt, rejected, bitter, revengeful and tearful and might do things they have never done in their life before, like throwing flowerpots around the garden, breaking down doors or screaming in the street. Such difficult cases are about people on the edge, and the children are in the middle of it all.
In such circumstances, contact orders can often be a battleground and there can be a vendetta. Sometimes, grandparents can be the only anchor of certainty in children's lives. However, in my experience, some grandparents can compound the situation and stoke the fire by saying things like, "You should never have gone with him in the first place, dear." Then there is the bar-room lawyer, who has read something in the Sunday Mail and gives off-kilter advice about what people should say to their lawyers. This can all happen to a person who is in great personal difficulty.
The uncertainty of people's lives can be compounded by the fact that their house might have to be sold, or their job might be gone, and their support is gone. People are under a great deal of emotional pressure, so there is the law. However, because of human nature, it can be hard to help people in such circumstances.
To be blunt, if a party wants to make it difficult for the other party to have contact with the child, they can—I even had a case in which there was a false accusation of sexual abuse by a father. Once that is put into the pot, it can almost never be unravelled. All kinds of things happen. The parent does not get near the child during the inquiries, months and months pass and, if the child is young, they begin to lose contact with that parent as a matter of course. It is devilishly difficult to deal with.
As Robert Brown quite rightly said, if a court order is not obtempered, what sheriff or judge wants to bring the parent to court and to fuel the fire by threatening imprisonment? Believe me—I have seen sheriffs trying everything under the sun, from the carrot to the stick and everything else, to make court orders operate.
We try to tell parties that the relationship will move on, the children will move on and things will change. The child might have half-siblings. Although there is no such thing as mediation if it is not consensual, if it is possible, mediation should be tried as soon as it is possible. However, with some parties, it will have to continue for a very long time. The only thing that every good family lawyer has ever said is, "You can fight about the property but, for goodness' sake, don't fight about the children." There is no winner when that happens, and the people who lose are the children of the relationship.
Had I time, I would have touched on contact centres, which in my experience are pretty grim places. The most-used contact centres that I know of are the McDonald's restaurants where dads used to take their children on wet afternoons. That has to change.
I congratulate Nigel Don on securing the debate and I welcome the opportunity to address issues around disputes over the jurisdiction of courts in the different parts of the United Kingdom—without, on this occasion, wishing to comment on the wider issues that are raised by the terms of Mr Don's motion. I am certain that there will be further opportunities in the not-too-distant future to discuss some of those concerns.
Respect for the authority of the courts over contact with children in the event of family breakdown is essential if the courts are to deliver on their principal duty, which is to protect the welfare of the child. To achieve that, it is important that courts are clear and consistent in dealing with issues of jurisdiction.
The case that has been highlighted is one with which I am familiar and one in which the issue of jurisdiction has still not been resolved to the satisfaction of all concerned. The most important consequence is that the focus of legal proceedings, over a number of years, has been not on the welfare of the child, but on the jurisdiction of the courts.
The legal position is essentially unchanged from that which is set out in section 41 of the Family Law Act 1986, which provides that a child who is removed from his or her area of habitual residence by one parent without the consent of the other parent should continue to be treated as resident in the original jurisdiction for a year. The difficulty in the case in question has arisen because of the apparent failure of a court in England to take that legal provision into account, which led to a court order being issued in England in a case that ought, at the time, to have been dealt with in Scotland.
The fact that Scots law operates separately from the law of England and Wales, with no common court that has oversight to resolve uncertainties, means that in a case of that kind it is very difficult to find the means to challenge a court that assumes jurisdiction to which it may not be entitled. For that reason, the case has been raised with both the Lord Advocate and the Lord Chancellor. It has been the subject of correspondence on several occasions, over a number of years, between justice ministers in both the UK and Scottish Governments. It has, indeed, been the subject of parliamentary debate prior to this evening, as many of the issues were raised last year in the House of Commons by my colleague, Frank Doran MP, on behalf of his and my constituent.
As has been mentioned, due process in the Scottish courts has found that jurisdiction in this case properly belongs to the Scottish courts, in spite of the views that were previously held by lower courts in Scotland that they were entitled to cede jurisdiction to courts elsewhere. The English courts system has yet to reach a final view.
It is clearly not for MSPs to take a view on what may or may not have occurred in a relationship, or even on which court is right in law. Our concern must be with how such issues of jurisdiction can be more speedily resolved. That matters not as an obscure point of law, but because a failure to resolve such issues simply distracts attention from the issues of substance in a case of this kind, which are issues around the welfare of the child that include, but are not confined to, issues of residence and contact.
Along with other members, I look forward to hearing from the minister how ministers and law officers in the various parts of the UK can work together constructively to ensure that issues of jurisdiction can be more speedily resolved so that the appropriate court is able to deal more quickly and effectively with the consequences of family breakdown, thereby protecting the interests of the child.
I, too, congratulate Nigel Don on securing this very important debate. Having worked on the children's panel and having had, like many members, experience on the cross-party group in the Scottish Parliament on children and young people, I am well aware of the issues that have been raised.
I am not that surprised by the remarkable consensus on the importance of mediation. When children get caught up in the legal process, they must find its adversarial nature mystifying and certainly threatening.
I am grateful to the newly formed community law advice network for providing me with a briefing on its research into the law and young people, which
"indicates that there is an identified need to make law more easily accessible so that people can obtain the legal advice they require."
According to the briefing, the research's key findings are that
"People were aware that legal advice and information was readily available from solicitors or lawyers. However ‘there was a resistance by respondents to approach these sources due to the perceived cost'."
and that
"The growing complexity of the law can be daunting to ordinary people. It can make the law and the legal systems appear inaccessible and remote except to a few experts or those rich enough to employ them to such an extent that ordinary citizens are deterred from seeking remedies to vindicate their civil rights and feel that they have no ownership of the legal system in respect of those rights."
The community law advice network's briefing then says:
"Apart from the general evidence that indicates a need to provide legal services in a more accessible way, there are specific considerations that require to be taken into account in relation to how children access the law."
In England,
"Substantial research has been undertaken by Youth Access, an organisation supported by Legal Services Commission, for young people's information, advice, counselling and support services. One of the results of their research has been the piloting of Youth Access Law Centres in England."
I am sure that that aspect been drawn to the Cabinet Secretary for Justice's attention. In any case, I recommend that he investigates those possibilities a bit further.
The briefing then outlines Youth Access's research, which
"investigates the needs of children and young people up to the age of 25 years. Key findings"
so far
"include:
The few civil legal aid providers that target young people tend to spend longer on cases, but achieve substantially better case outcomes for younger clients than other providers
Young people are less likely to obtain good professional legal advice than other age groups
Young people tend to have relatively low awareness of their rights and responsibilities, or of how to resolve their problems
Young people prefer to access legal advice in multi-disciplinary, holistic youth provision eg a youth advice centre".
Young people also have
"a marked preference for face to face advice"
and, oddly enough,
"they are less likely than other age groups to access advice and information by telephone or via the internet".
That is certainly an interesting result of the research, another key finding of which is that
"Young people state a preference for getting legal advice from either youth workers with good legal knowledge or advisers specialising in working with young people".
I ask the cabinet secretary to respond in his summing-up to those research findings. Again, I thank Nigel Don for allowing us to debate this matter—and in this particular tone.
I thank Nigel Don for his motion, which I was happy to support when it was first lodged, and for the eloquent and reasoned way in which he set out his case. Since last May, I, like many other members, have received a number of representations from constituents who have expressed concerns about this issue from various perspectives. I should say, though, that those representations have focused less on the question of jurisdiction than on equality of treatment with regard to married and unmarried parents and the enforcement of contact orders.
As someone who has in the past week or so been accused of lacking experience in certain areas, I find it somewhat intimidating to follow other members who have been involved in passing legislation on this matter, or who have previously practised family law. However, there is also a virtue in bringing a fresh eye to such matters.
I do not disagree with members' comments about the difficult and complex nature of such cases and with the observation that, at a time when emotions are running high, it is very hard to focus people's attention on the child's interests. However, we cannot stand back from the consequences that have been presented to us simply because there are extreme difficulties. If we have evidence that the rights of individuals are being left behind or ignored, as the motion and the examples that Nigel Don gave suggest, the law must be examined. Of course everybody wants mediation to happen where it can, and the collaborative initiatives that have been talked about are welcome, but in the final analysis, if the law is not working in the interests of everyone involved and is not protecting everyone's rights, it must be looked at.
Robert Brown knows far more than I do about the sanctions relating to contact orders that are available to the courts, but the representations that I have received suggest, for reasons that Robert Brown and Christine Grahame mentioned, that there is little evidence that the courts are willing to impose penalties. Sometimes that may be for obvious reasons. For example, in whose interest would it be in such circumstances to imprison a parent? However, if a parent wilfully ignores a contact order that a court has made, we must acknowledge that the other parent's rights have been trampled on. If we accept that the interests of the child must be at the centre of things, we must accept that the rights of one of the child's parents not being respected cannot be in that child's interests.
It is obvious that when a parent with custody of a child breaks a court order for access, there will be no quick resolution to the problem, and usually no penalty will be imposed on that parent. The parent without custody of the child must then go through the courts again and engage in what can often be a long drawn-out and expensive process—it can also be emotionally trying, as has been mentioned. Obviously, that can have an effect on parents' relationships with their children.
Lewis Macdonald rightly spoke about many of the legal issues in the background of the main case that Nigel Don highlighted. However, as far as I can determine, the simple fact is that a parent was deprived of access to their child for seven entire years and was falsely accused of a fairly horrendous crime. That is the information that I have. If that can happen, the law must be examined.
In the case of unmarried parents, schools and other authorities often advise the parent who has custody of the child on issues relating to the child, but the other parent is not advised. I also understand that the non-resident parent is not advised of children's panel issues.
There are issues, and it is right that, for the reasons that Nigel Don gave, a legal resolution to such problems should at least be considered.
I, too, thank Nigel Don for raising the important issues of family law and the support that is offered to families in difficult times. A remarkable number of measured speeches have been made, and the debate has been excellent. Members recognise the importance of the issues, the complexity of the area and the tragedies that befall individuals.
Thankfully, it appears that relatively few people are suffering as a result of the problems that have been raised. That said, the pain and grief for such people and the consequences for them and their children can be significant. Equally, I am conscious that, although we have a system of laws that is supposed to represent justice, law is sometimes the enforcement of rules and justice is not served. The Government and the Parliament must seek to minimise the number of cases in which that happens and alter things where we can, but occasionally the law fails to deliver justice. However, as Robert Brown correctly said, hard cases make bad laws. What a sheriff or judge should do in some cases would almost defeat the wisdom of Solomon. Should they imprison somebody and put a child into care? Should they put a child into the care and residence of a parent to whom the child refuses to go? Such matters are difficult.
Like other members, I have legal experience. From my experience of 20 years as a defence agent, I understand the difficulties that sheriffs face in difficult cases. We should not undermine the need for the law to be enforced so that it is not brought into disrepute, although tragedies will befall individual parents as a result. Equally, as the father of two boys, I understand the pain and sorrow that many individuals suffer.
The Government is committed to supporting families through its funding for family support organisations and supporting research to ensure that the law is kept up to date. We are committed always to improving the law. There have been considerable changes since Robert Brown, Christine Grahame and I ceased practice.
I have great sympathy for parents who wish to play an active role in their child's life but who, for whatever reason, cannot do so. Grandparents also lose out in many instances, when they have a great deal to contribute. I will always remember the tragedies that I have heard about from teachers who could not speak to a parent because of a direction from the other parent, with whom the child lived. The teachers lamented that, particularly when they had many kids in whom no parent took an interest. Those are genuinely tragic cases.
In cases in which a court order has been breached, the sheriff can be asked to consider the circumstances and he can fine or imprison a person for breaking the order. However, the proverbial nuclear option may serve the interests of no one, least of all the interests of the child. The Minister for Community Safety has written to the president of the Sheriffs Association to seek a meeting on the issue. We will continue to monitor the matter and consider what we can do.
On cross-border issues, members will appreciate that I cannot comment on the circumstances of individual cases, but I appreciate that some disputes go on for many years and that manifest injustices can take place. We must try to address that.
I encourage parents who experience problems in their relationship to seek help at an early stage. As Christine Grahame and others said, many organisations are available—not simply lawyers who are expert in family law—including Relate Scotland, Scottish Marriage Care, and Citizens Advice Scotland. It is much better if issues can be resolved without the law.
Does the cabinet secretary agree that there is a paucity of specialised legal services that are aimed at helping children?
There are a growing number of specialists in child law. Also, we have facilities in Scotland such as curators ad litem, safeguarders and a variety of other measures. I would not wish to be responsible for the establishment of a legal empire for those who seek to specialise in this area. Great progress has been made on some issues and solicitors' experience of the issues is increasing. As I say, sheriffs can bring in a safeguarder—who need not be a lawyer—to preserve a child's interest. I am happy to undertake to consider the issues to see whether the system can be improved. It is a matter of balance. Simply providing better legal access for children might create a more litigious society, which would not necessarily deliver the justice that we seek. The issue is about how we deliver that justice.
The cabinet secretary helpfully mentioned the need to make progress on cross-border issues. Does he agree that that is a matter that the Lord Advocate might usefully discuss with her counterparts in other jurisdictions?
I am sure that it is. I am more than happy to consult on the matter with the Home Secretary and the Secretary of State for Justice south of the border. People go back and forward. We have heard anecdotal evidence of the problems. It is manifestly wrong for people to seek to thwart a court order either north or south of the border by jumping over it. That should not happen. The jurisdictions on both sides of the border have a duty, so the Lord Advocate and I would be more than happy to have those discussions.
I do not accept that the courts treat parents who are married differently from those who are not. When a decision is made, the interests of the child have always been and will always be paramount. In cases in which domestic abuse is a factor, the focus must be on protecting those who are most vulnerable. I fully accept that collaborative or mediation-based approaches may not be the most appropriate in those circumstances. Mary Mulligan mentioned Scottish Women's Aid, which has made representations to members on the issue. The Family Law (Scotland) Act 2006 introduced a new definition of "abuse", which we must take on board.
Collaborative law has been mentioned. I have spoken with Cath Karlin, who is one of the major advocates of that approach in Scotland and one of the most experienced agents. The approach is new to me, as it is to other members, but we are happy to assist and work towards it. I met Cath Karlin and representatives of Family Mediation Grampian yesterday. Other concepts are used in measures in Australia and elsewhere. We must be open and fluid but recognise that some fundamentals must always remain and that the interests of the child must always be paramount. If the system can be bettered by the points that Mr Harper raised, whether by way of collaborative law or by working better with jurisdictions south of the border and elsewhere, that must be done.
I assure Mr Don and other members that the Scottish Government is committed to supporting families through difficult times. We realise that some tragic and manifest injustices have occurred that do not serve our law well. We have to be ever vigilant. As I said, we are happy to take on board the matters that were raised on all sides of the chamber and to try to ensure that we resolve matters, particularly in instances where problems have arisen.
Meeting closed at 17:55.