Family Law
Good morning. Our first item of business this morning is a statement by Mr Jim Wallace on family law.
There can be few subjects as important for our Parliament to deal with as family law. The family is all-important to the welfare of society and, especially, of the children who will be the society of the future. This Parliament provides the opportunity at long last to modernise important aspects of family law in Scotland.
The white paper that we are publishing today sets out our proposals and invites views on a limited number of issues. Our white paper is called "Parents and Children", which signals that the welfare of children is at the heart of our concerns.
Children today live in families that can take many different shapes. We do not need psychologists to tell us that the relationship with parents is the single most formative influence on children's lives. Many children today live with one parent, or in a family that has undergone change. The adults who care for children may not be their birth parents. The relationships that adults have with each other and with the child are crucial for the child's welfare. The framework of the law must reflect that and be as supportive for children as possible.
In that context, I have said, and will stress again, that we support marriage as the most recognisable and widely accepted way of signalling to society a couple's commitment to each other and to their life together as parents. Marriage remains a central concept of our family law and nothing in our proposals will change that. However, we must also take into account the fact that many couples choose not to marry but to live together. In such circumstances, the important factor is the stability of the relationship in which they bring up children.
Against that background, I will comment on the main proposals in our white paper. The paper begins with the important question of parental responsibilities and rights. It is crucial that children know who has responsibility for them and who has the right to intervene in their lives. It is crucial that parents know in what ways they are responsible for their children. It is crucial that the various organisations that come into contact with a family are clear about those rights and responsibilities.
That clarity is not available at present. We estimate that some 18,000 children a year are born to couples who are not married, but who take the important step of registering the child's birth together. In terms of financial responsibility, the law is quite clear: the father and mother both have an obligation to support the child. However, in other areas—for example decisions on important matters such as the child's education or medical treatment, or where the child should live—many people, including the parents themselves, probably do not even realise that under the Children (Scotland) Act 1995 the unmarried father has no parental responsibilities and rights, even if he is registered as the child's father.
Until 1995, unmarried fathers could acquire parental responsibilities and rights in two ways: by court order or by marriage to the mother. The Children (Scotland) Act 1995 added a third way—an agreement made with the mother and registered in the books of council and session. That provision has had very little impact. Only 335 agreements were made in 1999, for a possible total of 18,000 children of unmarried parents who showed sufficient commitment to register jointly the birth of the child that year.
Clearly, there is a need for some change so we propose that parental responsibilities and rights should follow automatically on joint registration of the birth. Fathers who have registered the birth of a child jointly with the mother have already shown commitment to the child. They need to be given the formal parental responsibilities and rights that go with their commitment and to be encouraged to take them seriously.
Contrary to what we suggested when I made a statement in January, we no longer propose to apply that retrospectively to unmarried fathers whose children were registered before the new provisions come into effect. We have listened to those who said that it was wrong to change retrospectively the status of any child or any unmarried father. The mother may have entered into joint registration some years previously with no expectation that that would result in parental responsibilities and rights for the father. Changing those arrangements halfway through childhood would be unsettling for many families. What we propose now will not change the status of any existing child. However, we still think it right to consult on our original proposal, so that all the arguments are out in the open, and therefore it is included in the white paper as a consultation question rather than as a proposal.
We propose that step-parents should be able to acquire parental responsibilities and rights by agreement with those who already have such rights. The fine details still require consideration, but briefly, we propose to confine those agreements to married step-parents. Marriage demonstrates a legal commitment to the partner who is the parent of the stepchildren in question. That is essential before parental responsibilities and rights can be granted to an otherwise unrelated adult. Other new partners can still seek such rights through the courts.
Domestic abuse is an area to which the Executive attaches high priority and to which considerable attention and resources are already being devoted. There is no place for abuse in a modern Scotland. We are determined to do all that we can to reduce and ultimately eradicate such shameful behaviour, which has a devastating effect on the lives of those who are affected by it. To that end, the Scottish Partnership on Domestic Abuse is completing its recommendations, which will include a national strategy, action plan, good practice guidelines and service standards. Those recommendations will be published in October. In addition, we are carrying out a review of legislation on stalking and harassment.
Our approach in the white paper is to build on the framework of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 by extending the protections that are available under that act to spouses—whether married or separated—divorcees, cohabitants and ex-cohabitants. We propose that a power of arrest should be attached to interdicts for three years, where it is requested. We also propose a clearer and fairer regime for occupancy of the shared home.
I understand that the Justice and Home Affairs Committee's proposals go further than that. However, our objectives are the same: to provide improved and adequate protection. We have started dialogue with the committee's reporter, Maureen Macmillan. I expect full and open discussion to continue as the proposals of the committee and the Executive are developed, so that we can find the best way forward.
Whatever personal views we may hold on the matter, it is a fact that one third of marriages end in divorce. The Parliament must ensure that the workings of the law do not add to the pain that inevitably results from divorce. In particular, we must ensure that the law does not encourage adults to behave in ways that increase the damage to their children. Our proposals are aimed at changing the behaviour of parents who have already decided to divorce.
Couples should enter marriage with the highest seriousness, and we do not intend to make it easier to end marriage by divorce. However, when divorce is inevitable, there is every reason why that painful business should be done with as little damage as possible to the children.
In Scotland, most divorces of couples without children proceed on separation grounds. However, the position is different for couples with children. There has been a growing tendency for couples with children to resort to the accusation of unreasonable behaviour to constitute the grounds for divorce. In 1998, which is the latest year for which full statistics are available, 54 per cent of divorces of couples with children proceeded on the grounds of fault.
Accusations of fault may be necessary where there is domestic abuse or other unacceptable behaviour for which a rapid solution is needed. We understand that the use of the fault grounds may also be seen as a means of achieving a divorce more quickly than separation would allow, to avoid prolonging the agony and uncertainty. Whatever the reason, the use of the fault grounds does not influence the court's attitude to either financial provision or the care of children. Financially, the law is designed to achieve a clean break. However, the reforms in the Children (Scotland) Act 1995 were designed to ensure that both parents retain their involvement in their children's upbringing after separation or divorce. Therefore, there is nothing to be gained from using the fault grounds except speed. We believe that the use of the fault grounds to speed up divorce may exacerbate unnecessarily the acrimony surrounding divorce, with detrimental effects on children.
That is why we support the recommendation of the Scottish Law Commission in 1989 that the separation periods should be shortened. The commission consulted, and the Scottish Office did so again in the paper "Improving Scottish Family Law". The majority of respondents supported proposals to reduce the period of separation from two years to one year with consent, and from five years to two years without consent. The intention of the change is to encourage couples with children to wait until a year's separation has elapsed rather than to proceed on fault grounds. The fault grounds will remain available for those who genuinely need a quick divorce, although the white paper asks whether those grounds should be merged into a single behaviour ground.
We believe that a year's separation will usually be sufficient to establish that a marriage has broken down irretrievably. Where one spouse resists that, a further year is long enough to confirm the breakdown. It is inconceivable that couples who would otherwise stay together will be encouraged to separate as a result of the proposed changes.
I must emphasise that the aim of the changes is not to increase the number of divorces, nor to trivialise marriage, but to deter couples from rushing into allegations of fault to accelerate the process of divorce. That should cool the temperature of a separation during a time that is inevitably difficult for children.
We very much hope that couples who wait a year will also explore fully the possibility of reconciliation. We would certainly encourage that. However, if all attempts at reconciliation fail, the year will also allow time for proper arrangements to be made for financial provision on divorce and for both parents to continue to be involved in the care of their children.
We expect that the overall number of divorces will remain the same as at present. We expect an initial increase immediately after the provisions come into effect, as some people who are waiting to meet the separation requirements will do so earlier. However, that initial increase should be followed by a compensating decrease in numbers of divorces over the following years.
I have suggested that the year's separation could be used to explore the possibility of reconciliation, or for mediation to sort out disputes. It is very important that properly trained counsellors and mediators are available to assist families in such circumstances. When divorce becomes inevitable, each party will need legal advice and representation. That said, there is an important role for service provision by the voluntary sector and for lawyers as mediators, and a number of organisations provide information, advice, counselling and mediation with the support of public funding.
Mediation continues to be eligible for funding as a legal aid outlay. In addition, voluntary organisations that support families receive local authority and Executive funding, as well as charitable support. As part of our commitment to reconciliation and avoiding acrimony, our funding of organisations that provide counselling for couples and family mediation has increased by 40 per cent between 1999-2000 and the current financial year, from £512,000 to £718,000. Further increases are in prospect. Through discussions with the relevant organisations, we are developing a strategy to put their funding on a more secure footing. We will underpin that in due course with a more targeted statutory power.
We will also expect local authorities and grant-giving bodies to continue to play a part in supporting those organisations. There is no point in the Executive increasing funding if other funders simply withdraw in response. There is, and will continue to be, a role for mixed provision and the role of the local authority will be very important in ensuring that area-based needs are met.
I hope that I have made it clear that our primary concern is the welfare of children and how each of our proposals will contribute to that end. To explain that more fully, I have offered meetings with the main Churches and discussions with other faith groups through the medium of the Scottish Inter Faith Council. I hope that those meetings will lead to greater understanding and acceptance of the need for change. We are happy to meet other groups. In a vital area such as family law, consensus is desirable; however, even if that cannot be achieved, it is important that everyone has their say.
The white paper sets out in detail other family law improvements that will: make technical amendments to the law on marriage; provide some improvement in the financial situation of cohabitants on separation or bereavement; and modernise certain other aspects of Scottish family law.
One of our modernisation proposals received widespread support from members when I announced it on 20 January, so I will mention it again. We will end the status of illegitimacy in Scotland. Although the status has no practical effect—we plan to remove the terminology from the statute book—its removal sends a powerful signal about the importance of every child in our nation.
I am proud to take this step forward in the reform of Scottish family law. Today's publication of "Parents and Children" marks one more milestone on the journey.
Although the statement is important, I appeal for short exchanges, as we are under heavy pressure from members who want to speak in the debate on transport.
I broadly welcome today's white paper and the Minister for Justice's announcements. The white paper's proposals are particularly welcome in several areas; for example, those concerning separation and grounds for divorce are appropriate in our society. However, I understand that they might be controversial in some quarters and I wonder whether it might be useful to ameliorate some of that controversy by giving the role of mediation a much higher profile.
The minister said on 20 January that he did not intend to make mediation compulsory, but I wonder whether it might be worth considering that, at least in relation to mediation of the divorce rather than mediation with intent to bring about reconciliation—the two things are different. That might help in dealing with the controversy.
I welcome the provisions in chapter 7 of the white paper that deal with the financial provisions for cohabitants. That issue was raised in the statement in January and I am glad that movement has been made, although I await the details.
While I welcome the moves that have been made regarding unmarried fathers and step-parents, I still hope that there will be mention at some point of an enhanced role for grandparents. I am sure that all members have received correspondence from the organisations that are being set up to try to place grandparents at the centre of the family, especially as regards their role in relation to young children. The statement says nothing about grandparents, nor does the original consultation document. I want the minister to recognise that the issue is felt strongly in the country. Perhaps the role of grandparents could be considered with a view to enhancing it.
Domestic violence is the most important subject that I want to talk about, and there will obviously be a difference of opinion between the Justice and Home Affairs Committee and the Executive on the best way of dealing with it. Will the minister give a commitment that any Executive proposals on dealing with domestic violence will be treated urgently and will not be wrapped up with a general family law bill that might not be approached as urgently as domestic violence ought to be, particularly when the issues relate directly to the threat of violence?
Many of the points in the statement are about property and the Matrimonial Homes (Family Protection) (Scotland) Act 1981. As the minister knows, the Justice and Home Affairs Committee decided that that was a complicated and cumbersome approach and that there might be a simpler way of dealing with the threat of violence. I want the minister to give a commitment that legislation on domestic violence will not be held back because of a bigger, less controversial bill on family law in general.
I thank Roseanna Cunningham for her general welcome for the proposals and I look forward to working with her and the Justice and Home Affairs Committee in the process of further consultation on the draft bill and the legislation.
I am not persuaded of the case for compulsory mediation. I think that making mediation compulsory might undo some of the good that might come from it. However, I endorse strongly what Roseanna Cunningham said about the importance of mediation, particularly when divorce is inevitable. Many of the issues, at least those concerning the children, can be discussed in a more civilised and constructive way with the help of mediators. I share Roseanna Cunningham's view that mediation should be given a higher profile and think that we should all try to raise its profile. As I said in my statement, we have made more financial resources available.
Roseanna Cunningham is correct to say that my statement contained no specific proposals relating to grandparents. My recollection—I will correct this later if I am wrong—is that, under the Children (Scotland) Act 1995, grandparents can go to court to seek parental rights and responsibilities. I have received the correspondence to which Roseanna Cunningham referred, and I accept fully the important role that grandparents can play. Often, however, that can depend on the relationship between the parents of the child and their parents. The matter is not straightforward, but legal provision to deal with it already exists.
Although the Justice and Home Affairs Committee had proposed to go slightly further on domestic violence than the proposals in the white paper, having met the committee and Maureen Macmillan this week, I do not think that there is too much between our objectives. I told Maureen Macmillan and the Justice and Home Affairs Committee officials that my officials in the justice department would be willing to discuss how some of the proposals can be worked up further.
As far as timing is concerned, Roseanna Cunningham knows as well as I do that there are drafting difficulties and a burden on her committee. Domestic violence is an important issue; we do not want to drag our feet on it, and I have certainly not closed the door. I have an open mind as to whether such measures should be included in our family law legislation, or in a bill that may emerge from Ms Cunningham's committee.
I thank the minister for the copy of his statement, and I generally welcome its contents. I particularly welcome his support for marriage, and his words that "nothing . . . will change that".
Given the steps recently taken by the Government to remove some of the material benefits of marriage, and given some of the practical advantages that will come as a consequence of today's statement, can the minister find the means of restoring some specific advantage to marriage, to support the belief that the contract of marriage offers protection for man, wife and children alike?
We welcome the minister's proposals on unmarried fathers' rights, where, from the outset, responsibility and care has been demonstrated, but we do not welcome the delay in implementation. Given, perhaps rightly, that there is to be no retrospection, would it not be preferable for the minister to act now rather than to engage in further consultation?
I have a series of short questions. One is on grandparents, and I back Roseanna Cunningham's comments. Having listened to the minister's response to her, I ask him to re-examine the issue. It was perhaps covered by the Children (Scotland) Act 1995, but there still seems to be a deficiency.
Can the minister explain what he means by a
"clearer and fairer regime for occupancy of the shared home"
at times of separation? There is currently no influence on the courts with regard to financial or care effects on children. Why does not the minister feel that we should legislate to change that? What evidence is there to suggest that speedier divorces will benefit children? My impression is that the majority of children are deeply wounded by parental separation.
What grounds does the minister have for making the statement that
"It is inconceivable that couples who would otherwise stay together will be encouraged to separate as a result of those changes",
given that passage of time is a great healer?
The minister recognises that if his proposals on mediation were to become law, there would be a short-term increase in the number of divorces. On that basis, will he undertake to ensure that central Government will provide a short-term boost to mediation services to cover that increase? Given local authorities' current difficulties with their block grants, it is extremely unlikely that they will be able to cough up in such a situation. Will he take on board the responsibilities of the Government to meet totally the short-term upward cost of mediation, given that this will be its legislation?
I welcome Mr Gallie's general welcome for the proposals. He raised the question of marriage, and I can confirm what I indicated on the subject in my statement. Marriage is still accorded a focal point in our family law, and I do not believe that our proposals undermine that in any way. For example, the law sets out formalities on who can marry. Marriage is still important with regard to the obligation of aliment between a husband and wife, an obligation which does not exist between cohabitants. When marriage comes to an end, the law sets out how matrimonial property is divided upon divorce, and provides certain rights for the survivor upon death of one spouse.
Important provisions are also included for cohabitants. It may well be that a cohabitant has contributed a lot to an arrangement financially, or perhaps did not go to work in order to look after children. I am sure that Mr Gallie would agree that they should not be left with no remedy at all, or without any claim, should a relationship break up. We are trying to recognise the realities of many family units in Scotland. However, marriage still has a status in our family law, which will not be undermined by these proposals.
On the subject of grandparents, I have nothing much to add to what I said to Roseanna Cunningham. Mr Gallie is a member of the Justice and Home Affairs Committee, and if proposals on the role of grandparents are included in a draft bill, we will be obliged to consider them. A much more complex set of interrelationships would be involved, though, and not one that lends itself to a ready remedy if there is an avenue that can be followed.
Mr Gallie says that the passage of time is a great healer, and that we might tip some couples towards divorce if the period of separation is reduced to one year with consent. My experience—admittedly it is some 20 years since I was in legal practice—is that by the time couples come to the decision to divorce, the marriage has reached that stage. Although I said in my statement that a year's separation may give an opportunity for reconciliation, rather than time being a great healer one usually finds that the longer a couple have been apart, the more likely they are to stay apart.
With regard to the question of resources, if there is an increase in the number of divorces, I said in my statement that further increases in funding are planned for the mediation services. It is worth naming the organisations that provide those services, as they play an important role: Family Mediation Scotland, Scottish Marriage Care, Couple Counselling Scotland and Stepfamily Scotland, the last of which has an important role to play in supporting children in stepfamily relationships.
However, it would be unfortunate if the Executive gave more money only for funding from other sources to be removed. I hope that longer-term planning in local authorities—if they are able to move to three-year budgets—might help to ensure a continuity of funding for the voluntary sector, and especially for the organisations that I have mentioned, allowing them to plan ahead on a more stable basis.
Now that the Opposition parties have had their say, I appeal for short questions and answers, as many members want to speak.
I welcome the Deputy First Minister's statement and echo what Roseanna Cunningham said about the Justice and Home Affairs Committee's proposed bill on domestic violence. I am extremely pleased that the Executive is now negotiating with us over that bill.
The protection from abuse bill that has been proposed by the Justice and Home Affairs Committee casts the net wider, concerning who, and what kinds of family situations, would be protected—extended family and different kinds of relationships, not just married people and cohabitees. Does the minister agree that speed is of the essence in this matter, and that provisions should be put in place as soon as possible?
I would also like to ask the minister about the proposals concerning an unmarried father who registers the birth of a child. I ask him for an assurance that that registration would take place only if the mother agrees to it. I would not like an unmarried father to have the right to register the birth of his child jointly with the mother if the mother did not agree to that.
I shall deal with that last point first. In talking about joint registration, we mean joint registration with the consent of both parties. I hope that that allays Maureen Macmillan's concern.
We have been in discussion—negotiation suggests that we are somewhat at odds—with the Justice and Home Affairs Committee over its proposed domestic violence bill. As I said to Maureen Macmillan yesterday—and as I have indicated to the Parliament this morning—there is not terribly much dividing our objectives. Much of the discussion concerns the definition of who would be covered by the bill. I hope that the dialogue that we have entered into will lead to an outcome that the Justice and Home Affairs Committee, the Executive and the Parliament will find satisfactory.
Clearly, we want to make progress but I cannot give a timetable today. We should not ignore the fact that there are remedies available now, although perhaps they are not as widespread as we would like and can certainly be improved on. As an Executive we have been trying to give help to women's aid groups to try to ensure that the law as it stands can bring benefit to people in the appalling situation of domestic abuse.
I thank the minister for his statement and the white paper. I welcome the increase in funding for mediation services. Will the minister consider extending funding to groups that are trying to combat domestic violence? Some could do with just a little help to ensure that their work proceeds.
I thank Euan Robson for his welcome for the proposals. My colleague Jackie Baillie announced in March this year that we had approved 48 projects to assist victims of domestic violence in 31 local authority areas. The projects are designed to include outreach work, multi-agency development and work with children. The Executive is providing £1.5 million for that for each of the years 2000-01 and 2001-02. It is an issue that we take seriously and are addressing with commitment and cash.
I was a practising family lawyer until I was elected to the Parliament and in that time I am afraid I dealt with only one reconciliation.
I have three small points—
Short questions.
They are very short questions. Would Mr Wallace reconsider the position on grandparents, who will not have recourse to mediation services at the moment? I welcome the movement on property law for cohabiting couples, but I ask the minister how far that will go. He does not intend to equate cohabitation with marriage—I am not quite sure about that, we will have to see the detail. I ask the minister to consider that the stand-alone bill that the Justice and Home Affairs Committee has proposed, to extend the power of arrest to certain kinds of interdicts at the sheriff's discretion, would be the faster response that many organisations wish to see.
I do not think that there is much to add on grandparents, except that Christine Grahame is making a slightly different point about access to mediation services. Without making any commitment, we could look at how that could be better facilitated. The financial provisions for cohabitants are set out in chapter 7 of the white paper. The main difference will be that whereas in marriage one has rights either on separation or bereavement, for cohabitants there will be an allowed claim. The presumption of equal shares in household goods in the Family Law (Scotland) Act 1985 will apply, with modifications, to cohabitants. Provision will be made for cohabitants whose partner has died to claim a share from the partner's estate. The details are set out in paragraph 7.4.
On the bill on domestic abuse, I have indicated that we want to make progress and have made a start to the dialogue, which I hope is a signal of good intent.
I particularly welcome the theme of the statement, that the welfare of children is the ultimate objective. My question on the new provision of one-year divorces with consent is on the length of time it can take for divorce cases to be heard in the civil courts. Once a case has been lodged, it is a particularly vulnerable period for families and children. At the moment civil cases do not have priority in the courts, but the importance of family law suggests that some of those cases should be speeded up. Will the minister look at that aspect?
I am certainly prepared to try to get further information on the length of time that things take, but Pauline McNeill and the Parliament will appreciate that, over the past 10 months, since the suspension of temporary sheriffs, there have been difficulties in our sheriff courts. I do not think that anyone denies that.
Cases in which children are involved fall into the category of cases that should be given priority. Parliament has now passed legislation that allows the appointment of part-time sheriffs. I hope that an announcement will be made, sooner rather than later, on part-time sheriffs, and that that will help to reduce the waiting times. I will try to find out more about the waiting times for people using the sheriff courts for divorces.
In relation to the Matrimonial Homes (Family Protection) (Scotland) Act 1981, is there any intention to widen the grounds of application, in terms of occupancy pending divorce, for disposal of the matrimonial home? At the moment, there is a limit on that, involving provable violence and other grounds. That rather trammels the ability of the court to deal speedily with cases when necessary.
I cannot give an immediate or definite answer to Robert Brown. I understand his point. There are some proposals to amend the law in terms of occupancy. I will write to Mr Brown about this, and will give detailed information to the Scottish Parliament information centre.
I welcome the power of arrest that is to be attached to a greater number of interdicts. I also welcome the fact that the changes to parental rights are not to apply retrospectively. How does the minister respond to the concerns of many women who are subjected to intimidation and violence that they will lose the protection against unmarried fathers that they have under the Children (Scotland) Act 1995 and that the consent part of joint registration with consent will be difficult to enforce?
Chapter 5 of the "Parents and Children" document is on supporting families in transition. Can the minister confirm that the original list of organisations—Family Mediation Scotland, Couple Counselling Scotland and Stepfamily Scotland—is not exclusive, and that One Parent Families Scotland, for example, will be eligible for funding?
As I said in my statement, we hope to put the funding arrangements on a better statutory footing. I am sure that One Parent Families Scotland will be able to apply—there is no presumption against them. They will require to apply, like other organisations.
As I indicated, some 18,000 births were jointly registered by unmarried couples last year. The presumption must be that that was done consensually. If a woman felt that she was being forced to make a joint registration, we might want to consider ways in which she could subsequently raise that issue. However, the overwhelming evidence is that these are genuine, bona fide, joint registrations by consent. In such circumstances, we want to ensure that fathers have the rights, and indeed the responsibilities, that they do not have currently under the law.
I add my voice to the congratulations to the minister on his statement. Does the Executive consider that further protection is needed for children, especially when access—or contact, as it is now called—is granted to an abusive parent?
Issues of contact are determined by the courts on the important ground of the best interests of the child. I am aware, and I am sure that Gil Paterson is aware, from representations received from constituents, that those can be difficult issues and that they often lead to a lot of heartbreak. In such circumstances, it is important that the issues are determined by those who know the details of the individual case. Clearly, sheriffs have to take great care. I do not think that we can do any better than to emphasise the paramount importance of the best interests of the child. That should be the guiding principle for all determinations.
I welcome the minister's statement. Will the minister give considerations to the rights of the child in respect of access to medical information where the child is being passed on for fostering or adoption? They currently have no rights of access to parental medical history and that creates enormous problems later on. I would like the minister to consider that point.
Secondly, I am slightly disappointed that there is nothing in the proposals about access by grandparents to children. That is an issue that Roseanna Cunningham alluded to and it should be addressed in the bill.
I can tell that the issue of access by grandparents to children will be raised in response to the consultation. As I suggested earlier, if members have proposals, we will consider them. However, I am not convinced that there is a ready-made solution.
I confess that Richard Simpson's question about children's rights to family medical history is a novel point. I can see the force of the point, which is perhaps increasingly important given the advances that have been made in medical science. However, it is not a matter that we have addressed yet. I am prepared to consider the issue.
Is the minister aware of the comments of Lady Justice Butler-Sloss, the president of the family division of the High Court, who has spoken out against parents who have been found guilty of domestic violence being able to have contact with children? Will he take those views on board in drafting the legislation?
It is perhaps more important that those views are considered by the courts when they come to determine individual cases. It is important that every case is considered in the context of its individual circumstances. Clearly, if a child has been the subject of domestic abuse by a parent, that must weigh heavily with the sheriff when considering a request for access. The priority is the best interests of the child. As a generality, I would find it difficult to say that residence or access should be given to a parent who has subjected a child to regular abuse. It is important to consider the individual circumstances of every child and, therefore, it is difficult to generalise.
Our law is very sound. The Children (Scotland) Act 1995 and the principles that must be applied when making disposals of residence or contact are sound.
The discrimination legislation means that it is illegal to discriminate on the ground of sexual orientation and, therefore, it is implicit that the term co-habitants is gender free. However, it might be helpful to make it explicit that cohabiting couples of the same gender will not be treated any differently from cohabiting couples of opposite genders.
I remind Nora Radcliffe of my comments on 20 January, when I said that there are no plans to make changes to the law in relation to same-sex couples. The proposals are based upon the Scottish Law Commission's report on family law. At the time, the SLC indicated that it had received representations on the issue of same-sex couples but that it chose not to address the issue. That important issue was not addressed in the consultation paper on which the reforms are based. Given the importance that Parliament places on consultation, it would have been wrong for us to import into the white paper provisions on which there had been no consultation by either the Scottish Law Commission or the Scottish Office.