Plenary, 15 Dec 2005

Meeting date: Thursday, December 15, 2005

Official Report 851KB pdf

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Family Law (Scotland) Bill: Stage 3

Resumed debate.

Section 15B—Abolition of status of illegitimacy

We resume our consideration of amendments to the Family Law (Scotland) Bill. Group 9 is on the abolition of the status of illegitimacy. Amendment 12, in the name of the minister, is grouped with amendments 13, 14 and 32.

Amendments 12, 13, 14 and 32 deal with the representations that we received in the wake of amendments to the bill at stage 2 that were designed to abolish the concept of illegitimacy.

Many commentators have expressed their desire to see the concept of illegitimacy removed from Scottish law. However, as illegitimacy impacts on two reserved areas—succession to hereditary titles and the granting of arms—it is not within the competence of the Scottish Parliament to abolish the concept in its entirety. I will leave it to members' imagination as to who might still be classified as illegitimate.

The provisions that were introduced at stage 2 attempted to achieve the retrospective abolition of illegitimacy from Scots law with a saving provision that the abolition does not affect those reserved matters. However, since the amendments were made, a couple of points have been brought to our attention that require further consideration.

The first concerns new section 1(4) of the Law Reform (Parent and Child) (Scotland) Act 1986, as introduced by section 15B of the bill. It has been argued that the provisions in subsection (4), which explains how references to enactments and deeds that were passed prior to the commencement of section 15B are to be read, are too narrow and run the risk of missing out people who are currently regarded as legitimate. Although the risk is small, it is unacceptable. Amendment 12 provides that the changes made by the bill will not affect enactments or deeds that were passed or made before the commencement of section 15B. Although that represents a shift in policy from a retrospective to a prospective abolition, it provides much-needed clarity and ensures that the position is both straightforward and unambiguous. Amendment 32 is an additional repeal that is made necessary by that change.

Secondly, questions were raised about the relationship between the removal from the law of declarators of legitimacy, illegitimacy and legitimation and the reserved matters of succession to or devolution of hereditary titles. It was drawn to our attention that, although the existing saving provisions in the 1986 act refer to the titles and the way in which they may transmit on death, they do not extend to the means by which a person may establish whether there is any entitlement to such transmission. Amendments 13 and 14 allow for the retention of such actions in the limited circumstances that there is a connection with the succession to or devolution of a title, coat of arms, honour or dignity that is transferable on the death of the holder.

I move amendment 12.

Amendment 12 agreed to.

Amendments 13 and 14 moved—[Hugh Henry]—and agreed to.

After section 17

Group 10 is on court orders concerning parental responsibilities and the role of wider family members. Amendment 41, in the name of Rosemary Byrne, is the only amendment in the group.

The purpose of amendment 41 is to highlight the positive role that grandparents or other family members have in children's lives and to ensure that that role is widely recognised. Although the bill does not confer legal rights on grandparents and other family members, the development of the charter for grandchildren will go some way towards ensuring the recognition of the positive effect that grandparents and wider family members can have.

Amendment 41 would ensure that one of the key aims of the charter—that, in making decisions, courts should consider whether grandparents can play a role in children's lives—is enshrined in legislation. The amendment would ensure that the role of grandparents and other family members is not overlooked and that the best interests of the child are taken fully into account.

I move amendment 41.

Although I have a great deal of sympathy with amendment 41, I will not support it. Anyone who can show an interest in a child can make an application to the court at present—I use the word "interest" in its legal sense. Grandparents, aunts, uncles or associates who have been involved in the life of a child may already seek a contact order, residency or some role in a child's life. Children—often surprisingly young children, perhaps eight or nine—can be questioned by a sheriff if it is felt that they can express themselves about what they want to happen in their lives. There are many good sheriffs on the bench who specialise in the sensitive area of family law.

Grandparents often play a supportive role in relationships, although, as I learned in my 12 years of practice, some grandparents can be mischief makers when a couple are trying to reach a divorce settlement—they may pitch parents one against the other by saying things such as, "I wouldnae let him have access to the weans." Grandparents are like everybody else: a mixed crowd.

It is good to bring the issue of wider family members to the chamber and sheriffs should take cognisance of it. However, we should not enshrine it in statute.

I support the involvement of members of the wider family. I accept Christine Grahame's point that there are bad grandparents just as there are bad parents, bad MSPs and bad anyone else. However, the concept of the wider family can be extremely positive.

Grandparents have been lobbying intelligently on the issue for many years, but they are not the only people who would be covered by the amendment. Step-parents often have a long relationship with the child and help him or her to grow up, yet they are given no legal status. Similarly, an uncle or an aunt may occupy that important position. The courts should recognise that a well-meaning, useful and intelligent relation could be involved in looking after the future of a child in a much better way than at present. At the moment, some sheriffs may be managing well to involve members of the wider family. However, the Parliament should give guidance to all sheriffs to say that the law must recognise the wider family.

We could learn from the extended families of the east. Today, our concept of family focuses too much on two plus two in a wee box. That is wrong. We should widen the concept of family. Therefore, the amendment is well worth supporting.

I totally sympathise with the sentiment behind the amendment, but I do not believe that it would have the outcome that Rosemary Byrne desires. The amendment would give an almost automatic right of contact to grandparents and other relatives. The best way of ensuring contact is to leave the matter to the discretion of the court, where appropriate, or to work hard behind the scenes to ensure that everyone, including the parents, focuses on the needs and interests of the child. In that way, the place of grandparents and other meaningful people in the life of a child is assured and the child is afforded contact time with those people.

I will make a couple of points on behalf of the Justice 1 Committee. We took evidence on the issue from grandparents groups and we recognise the strong role that grandparents can play in the upbringing of children. However, we feel that it is important that we do not make that role into a statutory responsibility—the difficulties involved have been mentioned already.

Responsibility for children rests with parents. To give statutory rights to grandparents could further confuse an already complicated situation. The committee believes that the grandchildren's charter will tilt the balance towards the children's right to benefit from the relationship that they can have with their grandparents and, as Donald Gorrie said, with the wider family. However, the committee felt that that relationship should not be put on a statutory footing.

Sheriffs who regularly deal with such cases assured us that grandparents act as a stabilising influence. We have recognised that and the grandchildren's charter will go some way towards recognising it, too. Therefore, the amendment should be rejected.

It is clear that there is agreement in the chamber that wider family involvement is beneficial. However, I concur with the points made by Christine Grahame, Mary Mulligan and Margaret Mitchell. To enshrine contact between grandparents and grandchildren in law would be fundamentally wrong. What matters, and what must always be paramount, is the best interests of the child. There is no doubt that the involvement of a loving grandparent, aunt or uncle is beneficial and will add to a child's life, but to force the involvement of grandparents on the child would be counterproductive.

As has been pointed out, there is already an opportunity for any interested party—regardless of whether they are a blood relative—to apply for a contact or residence order. Sometimes, tragedies occur when sons and daughters fall out with their parents, but they should work towards reconciliation. It would be fundamentally wrong to enshrine in law the opportunity to make an order for access to a grandson or granddaughter, except in the most unusual circumstances in which part of the family is deceased. We should accept what Mary Mulligan said. We must take cognisance of the grandparents charter, but fundamentally we must trust in the good sense of our judges and sheriffs, who, in the main, tend to get it right. These are difficult matters and decisions must be made on each individual case. We should not force the issue in any particular circumstance.

I was persuaded by Rosemary Byrne's argument. She made the point that the amendment would allow the courts to consider the role of grandparents. Christine Grahame said that the courts can already do that, but amendment 41 seeks to ensure that the grandparents charter is recognised in the bill. Kenny MacAskill and others said that they have a great deal of respect for the grandparents charter. To my mind, there is value in recognising the charter in the bill.

I point out to Phil Gallie—this is also relevant to what Donald Gorrie said—that Rosemary Byrne's amendment does not mention a grandparents charter. The amendment deals with the charter for grandchildren and looks at the matter from the child's perspective. Some members have concentrated on grandparents, but the amendment focuses on grandchildren.

I accept the minister's comment. He is absolutely right, but perhaps that gives greater emphasis to Rosemary Byrne's argument. The fact is that everyone in the chamber is interested in the protection of children and in doing what is best for them. As Donald Gorrie said, the wider family may well be the best option for the child. The amendment does not seek to mandate the judge; it simply asks the judge to consider the matter. On that basis, I support the amendment.

I had some sympathy with Rosemary Byrne's amendment but, having considered it further, I think that it goes one step too far. Grandparents continue to play a valuable role in their grandchildren's lives. If grandparents are excluded, that is often because the parents have failed to work out their relationship. Loss of contact with the grandparents is a by-product of problems in the parents' relationship. If the bill helps the parents to sort out their acrimony in taking forward a divorce, it will go some way towards resolving some of the issues for grandparents.

As a child, I experienced an acrimonious divorce, but I had full contact with my grandparents on both sides and I appreciate the stability and support that they gave me in working through that difficult situation. Where such contact is appropriate and possible, it should happen. However, if the bill helps mums and dads to move forward, grandparents will benefit as well.

Rosemary Byrne's amendment 41 seeks to ensure that the court has

"regard to the charter for grandchildren".

It is important to keep emphasising that we are taking the child's perspective. We have emphasised that throughout the bill. Kenny MacAskill was right to say that we need to consider the child's best interests. Christine Grahame explained in detail how the courts examine the broader range of issues and consider the contribution that members of the wider family can make in a child's interests. Margaret Mitchell is right: the amendment would not achieve the desired outcome.

We started by developing a grandparents charter but, as discussions progressed, it became clear that we had to shift the focus back to grandchildren. It would have been wrong to consider an adult's interests ahead of those of a child. The charter is one of several packages of non-legislative projects that we are undertaking, including the parenting agreement and a public information campaign.

A range of organisations supported the drafting of the charter. We involved people from organisations such as the Association of Directors of Social Work, the Family Law Association, Parenting Across Scotland, Family Mediation Scotland, the Grandparents Apart self-help group, Stepfamily Scotland, Children in Scotland, Scottish Women's Aid and Families Need Fathers.

To avoid doubt, given that we are talking about grandchildren and not grandparents, it is useful to put on record our recognition of the tremendous role that many grandparents play. Christine Grahame is right: some grandparents play an inordinately invaluable role, although others may be quite obstructive. In general, we know that grandparents do a huge amount throughout the country.

When we debated financial support this morning, Cathy Jamieson said that we are considering a range of measures. We know that many grandparents step into the breach when parents have failed for whatever reason—whether it is medical, social or personal problems. Grandparents may be left with the burden at a time when they should, in a sense, be winding down. We need to examine how to support them far better and we are doing that.

I go along with much of what the minister says, especially in relation to the debate this morning. He knows the bill better than I do. Is the charter for grandchildren mentioned elsewhere in the bill? If so, I could well be satisfied.

The charter is not mentioned elsewhere. Kenny MacAskill and other members spelled out why neither the charter nor the parenting agreement is mentioned in the bill. Those documents are non-legislative and are designed to help people; they will not be legal documents. The court will take into account many factors, such as anything that a parenting agreement says. It will listen to children and consider the contributions from other family members. However, the charter was never designed to be a legal document.

As Margaret Mitchell said, Rosemary Byrne's proposal would not achieve the desired outcome. I have tremendous sympathy with what Rosemary Byrne seeks and I have put on record our appreciation of the work that grandparents do throughout Scotland. The charter was drawn up to recognise the value that grandparents can add to their grandchildren's lives but, in practical terms, it does not serve any real purpose.

In considering orders that relate to children, the courts will take into account current arrangements for a child, parents' views and, as Christine Grahame said, the views of other family members such as grandparents, if appropriate. The charter says nothing about the relationship between children and their grandparents, so to compel sheriffs to have regard to the charter when they consider the granting of a contact order would at best be inappropriate. If the amendment were agreed to, it could also reduce the flexibility for revision in future.

The intention is honourable and right and we sympathise with it. However, the practical effect would not be achieved. I ask Rosemary Byrne to withdraw her amendment.

First, I welcome the charter for grandchildren as a good move in the right direction. However, my reason for lodging amendment 41 is that there is no mention in the bill either of the charter or of the role of grandparents or other family members. Given that grandparents often play a tremendous role in children's lives and hold things together—for example, they provide child protection in circumstances of drug and alcohol misuse—it is surely time to ensure that they have some recognition. I do not ask that grandparents be given parental rights and responsibilities; I am just asking that they be given recognition.

Christine Grahame and others pointed out that the role of grandparents can be recognised by due process through the courts, but over the past two or three years I have spoken to many grandparents who have found the court process to be not only costly but, in some cases, extremely destructive and stressful. Amendment 41 provides another opportunity to recognise in the bill the role that grandparents play. As Phil Gallie said, grandparents are asking only for recognition of their role. I ask members to support amendment 41, which would provide that recognition.

It is interesting that many, although not all, members who have spoken in support of amendment 41 have been grandparents themselves. Some of us know full well how important that role is. I ask members to support amendment 41.

The question is, that amendment 41 be agreed to. Are we agreed?

No.

There will be a five-minute suspension, after which I will put the question again before moving to the vote.

Meeting suspended.

On resuming—

The question is, that amendment 41 be agreed to. Are we agreed?

No.

There will be a division.

For

Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Cunningham, Roseanna (Perth) (SNP)
Curran, Frances (West of Scotland) (SSP)
Ewing, Mrs Margaret (Moray) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gorrie, Donald (Central Scotland) (LD)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Martin, Campbell (West of Scotland) (Ind)
Matheson, Michael (Central Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Scott, John (Ayr) (Con)
Sheridan, Tommy (Glasgow) (SSP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)

Against

Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Wallace, Mr Jim (Orkney) (LD)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

Abstentions

Adam, Brian (Aberdeen North) (SNP)
Johnstone, Alex (North East Scotland) (Con)

The result of the division is: For 21, Against 96, Abstentions 2.

Amendment 41 disagreed to.

Group 11 is on court orders relating to parental responsibilities and so on. Amendment 42, in the name of Pauline McNeill, is grouped with amendment 15.

Going to court is an indication that there is conflict over or disagreement about contact with children. The parental agreement should provide an important starting point for separating parents. I originally wanted the parental agreement in the bill, but I have accepted ministers' assurances that it is a valid document to present to the courts.

The Children (Scotland) Act 1995 requires a court to consider contact and residency in the interests of the child. Indeed, the context of the 1995 act is that there should be joint decision making about children, whether or not they are resident with one parent. More work needs to be done on the 1995 act to ensure that parents understand that we are trying to achieve joint decision making.

When there is conflict, procedures can be protracted. I am familiar with cases in which the court has taken four, five, six or even seven years to reach a decision. There is a special procedure for family contact cases, but they are not always speedily conducted. Glasgow Sheriff Court has two specialist sheriffs, and I believe that they make a difference because they can press individuals when there are difficult issues and emphasise the role of both parents. However, when those cases go to court, they are costly and children are involved. We must impress on people the fact that it is the duty of both parents to consider the interests of their children.

The Executive has not yet acknowledged the extent of the problem, although it has shifted significantly in two important areas—the first is research and the second is access to justice. My amendment 42 requires the Executive to regulate for a shorter, speedier process. At issue is access to civil justice. We have heard in the chamber of cases that have cost ordinary individuals £30,000, £40,000 or £50,000 and rising, just to get access to the civil courts in order to see their children.

Although amendment 42 is a probing amendment, I emphasise my concern that we must do better to reduce the cost and length of such cases. My primary concern is about cases in which people argue for contact and the costs continue to rise significantly. In addition, parties who defend a position might claim legal aid, so the cost to the public purse must also be considered.

The debate on the previous group of amendments was about grandparents, who also have to use the 1995 act. They too might have problems with cost in order to get into court to argue their point of view.

The Executive's amendment 15 concerns the enforcement of contact orders. There are many cases in which the court grants an order that is frustrated or refused by the parent who has residency. I make it clear that, although I recognise that both parents must adhere to contact orders and I support action to deal with both parents, I refer to cases in which there is no suggestion of domestic violence. I supported the Executive's strengthening provisions to ensure that sheriffs have regard to both women and children when making such determinations and I do not argue for parents to be jailed or fined. However, the operation of contact orders is a genuine concern and it would be wrong simply to acknowledge and condone that contact orders are not complied with in some cases. Although it is difficult to find a solution—Hugh Henry has always said that—it would be wrong to give the impression that because we cannot find a solution, we therefore condone parents who refuse to abide by contact orders. It is not in the interests of children to do that.

Where do we go from here? I accept that there are flaws in the committee's position, which is now in section 17B of the bill and which does not achieve the desired effect. I support the Executive amendment for those reasons. However, I hope that the Executive will think further about what we do about the difficult cases because we do not know how many there are. I welcome the Executive's commitment to research that matter. We need to make a proportionate response. We need a mechanism that at least attempts to recognise that when the court has made a decision in the interests of the child, as it is required to do, we can do more—in a family-friendly way—to effect that decision.

I move amendment 42.

Amendment 15 removes section 17B, which was inserted into the bill by an amendment from Sylvia Jackson at stage 2. Section 17B seeks to compel the courts, when making or varying a contact order, to attach to it a notice warning of the consequences of failing to comply with the contact order.

I understand what drove Sylvia Jackson to lodge her stage 2 amendment and what was behind some of the other issues that she raised at that stage. Indeed, both Sylvia Jackson and Pauline McNeill have been diligent in pressing an issue of genuine injustice at times when one parent is denied access to their children. As a parent myself, I could not begin to imagine what it would be like not to have access to my child, despite having a court order to support me. Pauline McNeill was absolutely right to outline some of the implications, of both cost and the significant time that it takes to resolve such issues.

I sympathise with what Sylvia Jackson attempted to achieve to improve the quality of contact between children and their separated parents. However, section 17B as constructed could be unhelpful. It could be unduly intimidating to warn parents, before either of them had done anything wrong, of the consequence of non-compliance. At worst, it could encourage one parent to seek opportunities to threaten the other with consequences, for even the slightest breach. Our main motivation for lodging amendment 15 was the unintended consequences of section 17B. If it achieved simply what Sylvia Jackson was seeking to achieve, we might have been able to live with it. Unfortunately, it affects each party differently. The resident parent could face harsher consequences than the non-resident parent. Having listened and spoken to Sylvia Jackson, I do not think that she intended that.

I am listening carefully to what the minister says. Can he explain how there are any new consequences because of the existence of section 17B? I accept that there is potential for psychological pressures, but the minister is suggesting that there could be further consequences.

The warning will be effective only if there are sanctions to back it up. The sanctions to back up the warning affect the parties differently. One party faces far graver sanctions for non-compliance than the other. I have already mentioned the potential for people to feel intimidated.

I, too, am listening carefully to the minister. He is simply informing us of the existing position in law. Parents must understand that a court order is not made lightly and that it is contempt of court to breach it. All that will be given is information—nothing substantive is changing.

However, it remains for the court to determine how issues should be raised, whether warnings should be given and what action should be taken. We are attempting to deal with issues that are best left to the rules of court. We do not think that section 17B is the best way of proceeding, which is why amendment 15 has been lodged.

We are concerned that the issues raised by both Sylvia Jackson and Pauline McNeill are substantial, and we intend to move on two fronts. First, we want to determine the extent of the problem. When Sylvia Jackson drew attention to it, we found that there was a lack of accurate information and statistics. Some of the information was not particularly pertinent to Scotland. At stage 2, I gave the commitment that we would undertake research into post-separation contact arrangements. We need to scope the extent and shape of the problem, to understand what works and does not work and to examine the durability of the arrangements. Once we have a clear understanding of the problem in Scotland, we can start to design specific solutions. If it transpires that court-based solutions are needed—we do not know for certain that that is the case—and that the issue cannot be addressed through changes to the rules of court, we will seek a suitable legislative vehicle to introduce those solutions. I hope that the civil justice review that we intend to carry out will offer us scope to do that.

My second point is that, in direct response to what Sylvia Jackson, Pauline McNeill and others have said, we propose a pilot project to explore issues relating to contact enforcement. I will give members an outline of the proposals. It will be an outline only, because much remains to be developed with key partners, including the judiciary and the Scottish Court Service. We propose to establish a contact compliance officer, initially in one or two courts. The overall purpose of the post will be to contribute to local resolution of disputed contact cases, to provide data and analysis for wider research into the causes of breach of contact and to contribute to developing ideas for options for reducing the incidence of such breach and securing the parties' continued exercise of their parenting role.

The proposals are very much in the early stages, but we will work up a fully developed project plan that will establish a framework for the role of contact compliance officers and their interface with the court and the parties involved. The officers' functions are likely to include early and protracted involvement in cases in which a contact order has been breached; becoming a point of contact between the parties; supporting and giving the parties practical advice, including information about relevant services; explaining to parties the consequences of failure to obey the court order; and calling on mediators' skills, if appropriate. That goes some way to realising what Sylvia Jackson is trying to achieve with her amendment, but it also recognises the concerns that she and Pauline McNeill have.

Cost is an issue when one party has access to legal aid and the other does not. I will have further discussions with the Scottish Legal Aid Board about how the rules are applied and whether changes need to be made. It cannot be right that one party can use legal aid to thwart another party's access to justice without further consideration. We will negotiate with sheriff principals to explore the structure of the role of contact compliance officers and how they could add value to the current family court system. We will also explore the possibility of either using the existing rules of court or making new ones to make provision for the referral of appropriate cases to the contact compliance officer.

Amendment 42, in the name of Pauline McNeill, seeks to speed up court procedures. She has recognised the Executive belief that the amendment is unnecessary because the existing court rules are sufficient. The rules direct the court, in appropriate cases, to set a child welfare hearing for the next suitable date, allowing 21 days between the lodging of the notice of intention to defend and the hearing. Amendment 42 also cuts across the existing provision for making rules of court either by acts of sederunt or by rules of the Court of Session. The judiciary, rather than ministers, should determine court procedures. That maintains the independence of the judiciary. I hope that with those assurances, Pauline McNeill will withdraw her amendment.

Too many members wish to speak, and I will not have a chance to call everyone. I will restrict speeches in this group to two minutes.

I will speak quickly. I support the sentiments behind amendment 42, in the name of Pauline McNeill, and I turn quickly to amendment 15. At stage 2, I lodged three amendments dealing with the enforcement of contact orders. One related to warning notices and was agreed by the committee, resulting in section 17B. The other two amendments, which dealt with introducing additional measures, such as community service orders and compensation for financial loss, gained some support, but they were not agreed.

Since stage 2, I have become aware of the different legal interpretations of the warning notice statement. Rephrasing the statement so that it applies to both parents has proved difficult. The amendments that I moved at stage 2 built on the research and consultation that is associated with the Children and Adoption Bill in England and Wales, which is passing from the House of Lords to the House of Commons, and I am sure that there will be a lot of discussion about the non-enforcement of contact orders and other points.

The Family Law (Scotland) Bill will be law shortly. On balance, the minister's suggestion that the lack of enforcement of contact orders should be addressed is constructive, even at this late stage—as long as there are no delays. Research will be important to provide the kind of data that at the moment exist only in England and Wales. More important is the Executive's proposal for a pilot project to investigate the role of a contact compliance officer. It is essential that that person works centrally in the court system and is more permanently involved than the existing curators.

It is vital to act quickly once a court order has been breached. A constituent of mine, who has campaigned for a long time on this issue, knows that long court proceedings—eight years in his case—can be not only financially costly, costing up to £50,000, but emotionally costly. Contact with his children has now stopped. I ask the minister to consider—

I must hurry you.

—that the views of individuals, such as my constituent, and groups that have been most directly involved with non-compliance with contact orders, are important. They should be consulted as part of the on-going work. I hope that the Justice 1 Committee will take an active interest in this and other issues with which the bill is concerned. Can I take the opportunity to thank the convener of the Justice 1 Committee—

No. That is not reasonable. We are very short of time.

I will keep this brief. I want to underline the concerns that Pauline McNeill and Sylvia Jackson have reflected in the debate and in committee. During my time as a member of Parliament and then a member of the Scottish Parliament, I recall a number of occasions on which a parent, usually a father, came to me to express concern that access to his children was being withheld and that the court proceedings were dragging on and on.

That in itself can change the dynamic. If a child has not seen his or her father—it is usually the father—for a number of months because the court has not had a hearing or taken action, that can change the outcome. The court might decide later that the circumstances have changed so much that it will not enforce an order. That is why I believe that speed is of the essence in dealing with these matters.

I welcome what Hugh Henry said about legal aid. I have seen cases where a father or mother has been frustrated in pursuing a legitimate interest in getting contact, simply because they cannot afford their costs, because the other party is going back to court time and again.

In welcoming the steps that Hugh Henry has taken, I ask that the situation be monitored carefully and that the Executive be prepared to come back to the Parliament with proposals for different action if the pilot that he is proposing shows that there is a problem that is not being addressed adequately in existing law.

I feel strongly that amendment 42, in the name of Pauline McNeill, and section 17B, should be in the bill. Amendment 42 seeks to speed up the agreement and enforcement of contact orders. That is in the best interests of children and, importantly, seeks to prevent unnecessary aggravation and trauma for both parties in emotional and financial terms. I do not believe that section 17B is unduly intimidating; it merely ensures that there is a clear warning that contact orders are serious and should not be ignored on a whim. I certainly want amendment 42 to be agreed to and section 17B to be retained in the bill.

I am opposed to both amendment 42 and amendment 15. I accept the minister's point that these matters are best left to the court, but it is important that we bring home to people that court orders are not granted on a whim. I do not think that doing so is intimidatory. Of course there is a problem with instances of mothers not granting contact to an absent father, but there is a bigger problem with fathers who apply for contact and then do not take it up; that is why we should ram home the importance of orders. That is a far more complex situation and it arises far more often. We should tell people that if they apply for contact and the court grants it, it is important to take it up. We should say to them, "You should not be watching the football live on television; you should be undertaking the obligation to your child. You should not be seeking to go away with your new girlfriend; you should be undertaking the obligation that you applied for."

The problem is that the same force would not come down on the father who did not turn up because he was watching the football, as would come down on the resident parent. We would be warning people about consequences that are completely and utterly uneven. That is the problem.

We require not simply to warn of the consequences, but to stress the importance of the order. Having contact is an obligation that should be treated responsibly and with respect—the buzzword that is flying around this chamber and others. If someone applies for contact, the order should be adhered to. There should be a warning to mothers, but equally, there should be a warning to fathers. They would have the opportunity to take legal advice on the matter. It is important that we maintain an opportunity to make it quite clear that the contact order is important, not simply in the legal process, but in how we view parents' obligations to their child.

I seem to be developing an unhealthy habit of standing up to support the Executive's position. I will need to think about that a little.

Pauline McNeill outlined clearly and powerfully why the issue is significant and why the Executive needs to provide an answer to people in the situation of not having contact orders enforced. However, the enforcement mechanisms that have been proposed during the bill's progress are not appropriate, so I will support the Executive. I ask the minister to say a little more about the timescale. Clearly, if research is being commissioned, it seems unlikely that we will get around to anything concrete in this session of the Parliament. When does the minister expect the outcome to be delivered? I hope that all members will bear in mind the necessity of keeping this issue on the agenda if nothing can be brought forward before the next election.

Perhaps we should not be discussing something like this in such great detail at stage 3; we really should have dealt with this earlier. Again and again, people have said that the Family Law (Scotland) Bill is so big and complex that we needed more time to enable us to take it in sections and debate it properly in committee before we brought it to the chamber.

I want to bring some context to the debate. We are talking about only a small number of difficult cases. In more than 70 per cent of cases, contact arrangements are agreed between parents without reference to the courts at all. Of the remaining 30 per cent, the courts refuse only about 1 per cent.

I agree with the sentiments that Kenny MacAskill expressed, but I underline the minister's point that section 17B would not meet that requirement because it would not impact evenly on resident and non-resident parents.

I urge a note of caution about the idea of contact compliance officers. That sounds like a good idea but I would have thought that it required a lot of work. The part of the bill that is most important relates to the safety of the child. We are talking about safe contact. We must not forget that.

I am relieved that Pauline McNeill will not press her amendment. Although it is desirable to minimise delay in court processes, that must not be to the detriment of decisions taken. Time must be given to investigate closely all matters that impact on the child's safety, including domestic abuse, prior to making any contact order. That includes giving the child the chance to voice their views and giving proper consideration to those views. It could be absolutely counter-productive to have an expedited procedure.

My regrets to the members who wished to participate in this debate but could not. I ask Hugh Henry to respond only to those specific points that he has to address.

On the question about the timescale, research will take some time. We will start that as early in the new year as we can. I give the chamber a guarantee that the compliance officer will start work as soon as we are able to scope the job and to recruit. The funding will be made available before the end of this financial year and the work will probably start in the next financial year.

I ask Pauline McNeill to wind up as briefly as she can.

As I indicated earlier, I will not press my amendment, for the reasons that I gave.

On Marlyn Glen's point, I recognise that the court needs time in which to make important decisions. However, it should not cost an ordinary citizen the sale of their house to go to court to argue for contact with their children.

I welcome what has been said about research, which is important because we must have the facts. I acknowledge that a lot of work needs to be done, but I think that the announcement that there will be at least a couple of pilot schemes marks a significant and welcome shift in the Executive's position. I urge the minister to conduct one pilot in a large city and one in a rural area—I am sure that that would have been considered in any case.

I seek leave to withdraw amendment 42.

Pauline McNeill has asked leave to withdraw amendment 42. Is that agreed?

No.

The question is, therefore, that amendment 42 be agreed to. Are we agreed?

No.

There will be a division.

For

Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Frances (West of Scotland) (SSP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lochhead, Richard (North East Scotland) (SNP)
MacDonald, Margo (Lothians) (Ind)
Martin, Campbell (West of Scotland) (Ind)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Sheridan, Tommy (Glasgow) (SSP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
White, Ms Sandra (Glasgow) (SNP)

Against

Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

The result of the division is: For 45, Against 74, Abstentions 0.

Amendment 42 disagreed to.

Group 12 is on family relationship support services. Amendment 44, in the name of Stewart Stevenson, is grouped with amendment 53.

The context of the debate has changed in light of the minister's announcement this morning of £300,000 to aid capacity building in the various family relationship services around Scotland. However, we must be conscious that there are 30 such services, therefore if the funding for capacity building were divided evenly—I recognise that it will not be—the amount given to each would be limited to £10,000. Of course, that would not secure the long-term future of the services. I am particularly interested to hear what the minister has to say about that.

I did not make a sufficiently accurate note of the minister's announcement this morning, so I am not 100 per cent clear whether it covers all three of the proposed subsections in amendment 44, which are on relationship counselling services, family mediation and contact centres. I recognise that, in many ways, contact centres might be the most costly service, but they enable the kind of contacts that we have just discussed—those that result from contact orders—to be facilitated and mentored by a third party. I suspect that contact centres strongly support the initiative that the minister adumbrated in discussing the contact officer pilot in group 11.

I do not think that I speak separately from the Justice 1 Committee on this subject, which the committee discussed again yesterday. The minute of the meeting records:

"The Committee agreed the importance of proper provision of family support services and to consider this matter at a future meeting following the passage of the Family Law (Scotland) Bill."

We assume that the bill will be passed—it is a widely held assumption—but we have not exhausted the subject by any means.

The minister has an opportunity to compare and contrast what might be happen in Scotland with what the Justice 1 Committee found is happening in Australia. Even I might agree that it is going over the top a bit to spend 300 million Australian dollars—if I recall the figure correctly—on the matter in a country that has twice our population. However, that puts into context the £300,000 that the minister announced this morning. Australia's system of dealing with matters is a three-stage process that is similar to ours. First, a court order is made. Secondly, if the court order is breached there is a fallback. Thirdly, people are sent to jail. Of course, Australia never sends people to jail.

Amendment 53 is consequential and I will say no more on it.

I move amendment 44.

Before I call the next speaker I advise members that, all the interested parties having—I think—been consulted, under rule 9.8.4A I propose to extend the next deadline set out in the timetabling motion. The debate on group 13 will conclude at 4.10 pm. That does not mean that we have a lot of time. There will be two-minute speeches.

I am pleased to speak to amendment 44, but I make it clear that I will not support it, because the bill is not the appropriate place to put such measures. However, the discussion on the issue has shown that we need more information and research on which family support services we want and which services actually work. The Justice 1 Committee now understands the differences between the services that are provided, but I am not sure that everybody else understands them. Even Stewart Stevenson missed out one service that we discussed: pre-marriage advice. The other services are reconciliation services, mediation and family contact services, which all work differently, but which all have a contribution to make when relationships break down.

As we approached the end of stage 2, more and more information came before the committee. I thank Scottish Marriage Care for the information that it provided. It is clear that services exist that can be built upon, but it is also clear that there should be local responsibility for those services and that decisions on which services should be made available and how they should be provided should be taken locally. The Executive has already had discussions with the Convention of Scottish Local Authorities on the issue, but I press the deputy minister to take those discussions further. Some local authorities, such as South Lanarkshire Council, are innovative, but others do not make the efforts that they need to make for their local communities, which will ask searching questions of their councils.

We have often said that we want to know how legislation that we pass is implemented. As Stewart Stevenson said, the committee will consider the issue further. The committee can have a strong role in ensuring that services are available to support the legislation, which I am sure the Parliament will pass today.

I appreciate the sentiment behind amendment 44, but I will not support it because, rather than channel funds for family support services through local authorities, we should give voluntary organisations such as Family Mediation Scotland and Scottish Marriage Care, which have representation throughout Scotland, the opportunity to bid directly for funding.

In answer to Margaret Mitchell's point, I comment that local authorities can commission the services of the voluntary sector. Amendment 44 tries to ensure a duty on local authorities to provide family support services, the provision of which, as Mary Mulligan made plain, is patchy throughout Scotland. That is particularly true of mediation services, which can remove many difficulties and shorten the amount of time that divorcing couples spend in court.

I want to return to an issue that I raised this morning on contact centres. I am worried that, if we do not put a duty on local authorities to provide such centres, the present situation will continue—in some areas, solicitors can make referrals to contact centres but, in other areas, solicitors simply do not have that facility. A contact centre can be important at the abrasive stage of a broken-down relationship, as it can allow the parents, on neutral ground, to work their way to a civilised method of contact with their children. The sooner we get parents who are in such circumstances to a contact centre, the better.

Finally, I ask the minister whether compliance officers will have a role with regard to contact centres.

To answer Christine Grahame's final point, we will scope that, but it is for the court to determine what is best and to try to resolve problems. The purpose of compliance officers is contact enforcement. They will report to the court, after which it will be for the court to determine exactly what happens.

We are committed to the delivery of high-quality public services, which is why we give a huge amount of support to local government through grant-aided expenditure, the changing children's services fund and other funding sources. Under the way in which we operate in Scotland, it is then a matter for local government—the democratically elected local councils—to deliver services locally. I recognise that it is for local authorities, working with partners, to determine their local service priorities based on local need. In that way, they can secure the outcomes that matter locally. Therefore, it would be wrong for us to build an infrastructure in which local services were funded directly from the centre.

However, I also acknowledge the point that Mary Mulligan made and that other members made in the committee, which is that local councils must be held to account locally, given that there are huge gaps in provision across Scotland. Stewart Stevenson also made that point. The question is whether it is for us to determine what happens in a local area or whether that is a matter for the council. The money that we put in will go towards trying to encourage the development of local services. As we have not quite finalised the arrangement, at this stage I would prefer that we put more effort into looking to help people to work through relationship problems by using counselling and conciliation services. We already spend money on mediation, which also has a contribution to make. We are not talking about a universal service that everyone should have; people need the service at certain times in their lives and in different ways. This is about local needs being responded to locally by those responsible.

I said this morning that I am arranging a meeting with COSLA to discuss concerns about patchy service delivery. Mary Mulligan mentioned the excellent way in which South Lanarkshire Council uses the changing children's services fund. Why have other councils not done the same? We give the money to local government to use as it sees fit in local areas. Why is it that the arrangement can work very well in some areas but not in others? I want to explore that issue further. I know from talking to the convener of the Justice 1 Committee that the committee may well come back to the issue.

A statutory obligation on local authorities to provide services in a specific way would have significant financial implications, as they would come straight back to us to ask for more money. This morning I heard SNP members shout to Conservative members about what was, in comparison, a relatively modest financial proposal. The SNP members asked, "Where will the money come from? Have you costed the proposal?" We could say exactly the same about this proposal, which would involve a huge financial burden, for which there is no blank cheque.

I know exactly what Stewart Stevenson is trying to do. We sympathise with his aim and we will work to try to improve service delivery locally in an appropriate manner. We want new models of working. We want joint working and better integration of services such as counselling, mediation and conciliation throughout the country. We want more effort to be put in at the start of the process rather than at the end. That is why we announced the funding this morning.

Stewart Stevenson's amendments are well intentioned, but they would have completely the wrong effect. I worry about what the consequences would be if they were agreed to. Therefore, if he does not withdraw amendment 44 or moves amendment 53, I ask Parliament to oppose them.

I ask Stewart Stevenson to make the briefest of responses and to indicate whether he will press or withdraw amendment 44.

I do not read amendment 44 as determining a specific way in which services must be delivered, but as stipulating merely that they shall be delivered. I also believe that amendment 44 would mean that the services would need to be delivered not by the local authority but through it. I will press amendment 44 precisely because of the excellent services that I see in my area and the benefits that accrue to my constituents and people in neighbouring constituencies. A travelling caravan could be used to provide contact centres in rural areas—just as there are travelling banks and travelling libraries. Councils could consider providing services in a variety of innovative ways.

I press amendment 44 and encourage other members to support it.

The question is, that amendment 44 be agreed to. Are we agreed?

No.

There will be a division.

For

Adam, Brian (Aberdeen North) (SNP)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (North East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Sheridan, Tommy (Glasgow) (SSP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
White, Ms Sandra (Glasgow) (SNP)

Against

Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
MacDonald, Margo (Lothians) (Ind)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Campbell (West of Scotland) (Ind)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

The result of the division is: For 28, Against 87, Abstentions 0.

Amendment 44 disagreed to.

Section 17A—Orders under section 11 of the Children (Scotland) Act 1995: protection from abuse

That brings us to group 13, on the definition of conduct constituting abuse. Amendment 45, in the name of Stewart Stevenson, is the only amendment in the group.

I will be extremely brief. Amendment 45 is simply a probing amendment. During the passage of the Criminal Justice (Scotland) Bill, when discussing the physical chastisement of children, we discussed what might constitute abuse. We concluded, for example, that shouting at a child constituted abuse. Amendment 45 would simply add, after the word "speech" in the definition of conduct in section 17A, a range of other types of conduct. I want them to be included in the bill, unless the minister can assure us that they are already covered legally. If he can reassure us, I will not press amendment 45. However, I will move it pro tem.

I move amendment 45.

I have some sympathy with Stewart Stevenson on this, but I will not say too much about the scourge of domestic abuse. It could be argued that a more descriptive definition of conduct would be helpful, but we believe that the bill as drafted is sufficiently wide in scope to include the behaviour described in amendment 45. However, if we were to be as prescriptive as amendment 45, there would be a danger that some forms of threatening or abusive behaviour might not be considered by the courts because they were not listed in the bill. We need to avoid that situation.

We think that section 17A strikes the right balance. The drafting of subsection (7B)(d) quite deliberately mirrors the definition of abuse that is contained in the Protection from Abuse (Scotland) Act 2001. Without a complementary change to the provisions of the 2001 act, there would be the potential for considerable confusion. We do not want to move away from a position of clarity and consistency, so we hope that Stewart Stevenson will withdraw amendment 45.

Amendment 45, by agreement, withdrawn.

Section 17B—Contact orders: warning notices

Amendment 15 moved—[Hugh Henry].

The question is, that amendment 15 be agreed to. Are we agreed?

No.

There will be a division.

For

Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Leckie, Carolyn (Central Scotland) (SSP)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
MacDonald, Margo (Lothians) (Ind)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Campbell (West of Scotland) (Ind)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

Against

Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lochhead, Richard (North East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
White, Ms Sandra (Glasgow) (SNP)

The result of the division is: For 78, Against 39, Abstentions 0.

Amendment 15 agreed to.

Section 18—Meaning of "cohabitant" in sections 19 to 22

Group 14 is on the meaning of "cohabitant". Amendment 16, in the name of Fergus Ewing, is grouped with amendments 17, 18 and 18A.

I start by quoting the minister from the stage 1 debate on the general principles of the bill. He said that the package regarding cohabiting couples was

"perhaps the most complex and controversial aspect of the bill".

He went on to say that the aim was

"to protect the legally vulnerable when a relationship ends."—[Official Report, 15 September 2005; c 19116.]

At stage 2, Brian Adam and I argued unsuccessfully that the whole of section 18 should be deleted, and I will vote against the bill because it contains provisions that I believe are unworkable. We decided not to bring the argument back to the chamber today because it attracted only one vote in committee. We feel that there is no purpose in trying again because there is no realistic chance of getting an amendment through. We determined to try to make the provisions less unworkable—if that is not an oxymoron. The starting point is the definition, because we will create in Scots law a new status that will belong to a group of people called "cohabitants". The first question that a court will have to determine is whether the parties in a couple are cohabitants.

Let us consider what the Executive has said about its aim. In the policy memorandum, the Executive states that the bill focuses not on all cohabitants, but on people who are in long-term and enduring relationships. If we look at the definition in the bill and the definition that is proposed in amendment 18, which will change the original definition slightly but not fundamentally, we find that no attempt has been made to include provisions to that effect. No reference is made to commitment or to an enduring relationship and no length of time is specified. In theory and perhaps in practice, it is quite possible that one could become a cohabitant after living with someone for a few weeks.

In the interests of fairness and clarity, I suggest that there should be an objective definition. It is difficult to define legally concepts such as loyalty and the commitment to share one's life with someone else because any such test would be subjective. It would be an objective test simply to say that no one could be a cohabitant until the cohabitation had lasted for a period that was consistent with the Executive's criteria for an enduring relationship. In my view, one year is a reasonable starting point. If a couple had not lived together for a year, it is unlikely that the two partners could be said to be involved in an "enduring" relationship.

However, I lodged amendment 18A to offer Parliament an alternative approach, as I signalled to Hugh Henry at stage 2 that I would. I know that the Executive will argue that it would be arbitrary to impose a strict time limit of one year. A couple who had lived together for 11 months and who had a child might be regarded as cohabitants just as might a couple who had lived together for 13 months. That is why I have offered an alternative that I hope will be attractive to the many members who would be concerned about difficult cases arising. Amendment 18A provides that if the cohabitation period had not reached 12 months, there would be a presumption against the partners being defined as cohabitants. However, that presumption would be rebuttable—it would be open to the pursuer who had gone to court to argue that he or she was, in fact, a cohabitant.

I will listen with interest to the responses of the minister and other members before I decide whether to put both options to Parliament. I suspect that the option of the rebuttable presumption that is contained in amendment 18A might command more support. I urge members to think carefully whether they want the £11 million that it is suggested will be spent on legal aid to be used on disputes about whether people are cohabitants. In determining our approach to the bill, we should reflect on how popular such expenditure of £11 million would be among members of the public.

I move amendment 16.

I think I am out of time; perhaps I will take an intervention from Phil Gallie later.

Fergus Ewing has reminded Parliament of comments that I made early in the process, when I said that we were tackling one of the most complex and difficult areas with which the Executive and members of the Justice 1 Committee had had to deal. Before I discuss the amendments, it is important that I describe briefly what we sought to achieve by introducing a package of legal safeguards for cohabiting couples whose relationships break down.

At the outset of the process, we made it clear that we were not talking about introducing marriage-equivalent rights and responsibilities, or about equating cohabitation with marriage, although we recognise that, in some senses and for some people, our proposals go too far and that, for others, they do not go far enough.

We always sought to ensure that, when a relationship breaks down, the fundamental principle is the protection of vulnerable adults and children. That principle is central to the bill and in establishing a package of safeguards, we have borne it in mind. We have also borne in mind the fact that it is as right and proper to try to protect the right of an adult to live unfettered by financial obligations towards a partner as it is to protect vulnerable people. We believe that we have achieved that balance.

We want to bring greater certainty, fairness and clarity into the law through the establishment of a firm statutory foundation for disentanglement of the shared life of cohabitants on the ending of their relationship. It is important to remember that some of the provisions are in place at the moment—I refer to provisions on tenancy rights, damages and occupation of the marital home. The distribution of cohabitants' property on the breakdown of a relationship or on the death of a partner is not prescribed, however, and we believe that the legal vulnerability that arises from the current absence of systematic regulation sits uncomfortably alongside the increasing number of cohabiting couples and, indeed, the significant number of Scotland's children who are part of cohabiting-couple relationships.

Some people may not want the situation that we are providing for; nonetheless, it is the reality of what is happening in Scotland today. We believe that we must have modern laws that reflect what is happening in our modern Scotland. The bill therefore provides a set of basic safeguards that relate to sharing of household goods, money and property; to financial provision on relationship breakdown; and to discretionary provision for the surviving cohabitant when a partner dies without a will.

From the outset, our intention was to create legal safeguards to protect cohabitants who are in long-standing and enduring relationships, but not to cater for short-term cohabitation. Our focus therefore was on relationships that offer evidence of the partners' commitment to a joint life. Section 18 therefore defines the term "cohabitant" and, at section 18(4), describes the factors that the courts will take into account when determining whether a person is a legally relevant cohabitant for the purposes of sections 19 to 22.

I acknowledge that much discussion about how we should describe the factors took place in the Justice 1 Committee at stage 1 and, again, at stage 2. In giving evidence to the committee, Hugh Henry said that the Executive would lodge an amendment at stage 3 that would put it beyond doubt that what we are asking the courts to do is to take account of the time that a couple lived together as if they were husband and wife or civil partners, but not the whole relationship. Amendment 18 is designed to do that.

I will turn briefly to Fergus Ewing's amendments in the group. As I said, when we tried to consider the issue and decide what to do, one of the thorniest issues that the Executive and the committee had to resolve was duration. We want the courts to focus on longer-term committed relationships; the length of time that a couple has been together is one of the most significant aspects of that consideration.

Again, although the proposition to put a time period on the face of the bill may at first seem attractive, if the matter is considered carefully—as the Executive has done—one sees, as we do, that more would be lost than gained. The provision would be arbitrary, rigid and unresponsive to individual cases. It would not only create problems of proof and destroy people's behaviour, but lead to especially harsh outcomes in respect of discretionary awards on the death of a partner.

The example that I will cite was also referred to by Fergus Ewing. If a qualifying time period is set and one partner were to die a few days, a week or a month before the qualifying time was reached, surely it would not be right and proper for the surviving partner to be more disadvantaged than someone whose partner died after the qualifying period. Surely a surviving partner should have a right to ask the court to consider whether they were entitled to a discretionary award in those circumstances.

In his amendments in the group, Fergus Ewing proposes provisions which, if taken together, would mean that a couple would not be considered to have been cohabitants for the purposes of an award under sections 19 to 22 unless they had lived together for at least one year. In addition, amendment 18A would create a presumption that two people are not cohabitants except where the applicant can prove the contrary. We do not believe that that would be helpful in the circumstances in which people find themselves. I have outlined some of the reasons why we think that would cause problems.

A 12-month period would not be a magic solution—we could find ourselves in a situation in which people believed that they had rights only to find that they did not. Fergus Ewing's amendments would simply give courts a strong signal that Parliament might consider 12 months to be the trigger point for access to safeguards. However, the amendments could lead to courts finding themselves unable to give discretionary awards. Why would we give courts discretion to take account of the length of a cohabitation only to tie their hands with the presumption of 12 months that the amendments suggest?

We considered all the ramifications very carefully before concluding that the outcome should be dictated by the facts and the circumstances of individual cases that concern the lives of real people who are going through traumas. Section 18 gives a clear signal that duration should be an aspect of courts' consideration, while allowing them sufficient discretion to judge what is fair and reasonable, given all the circumstances. Those principles and concepts are familiar to the courts.

I urge Parliament to reject amendments 16, 17 and 18A.

I am going to have to apply a time limit to speeches. We will start with three minutes and see how we go.

I would like to explore the business of who is a cohabitant. I have been approached, as I am sure other members have over the years, by sisters who live together, by brothers who live together and by brother and sister who live together. They may have lived in a deep and settled relationship for many years—such relationships can often be deeper than most marriages or cohabiting relationships.

The one thing that such people do not have is an active sex life together. Are we so obsessed by sex that it is the only criterion for choosing who gets support from the law and who does not? Those very worthy people suffer—they have a worse deal on intestacy than cohabiting couples have. I am all for protecting cohabiting couples and for rewarding proper relationships, but such couples might have very good arrangements for sorting out their affairs, so why do we militate against brothers and sisters who live together in an harmonious and public-spirited manner by giving them a raw deal on intestacy? That is very foolish.

Is it possible to extend the definition of cohabiting to cover couples who cohabit but who are not in a sexual relationship? Could legislation be introduced to do that? The alternative is to drive people to deceit. Some couples who are not involved in such a relationship could claim that they want to be recognised as being in a civil partnership. However, if they said that they were, they would qualify for the benefits that are set out in the bill. A law that is an inducement to deceit is a bad law. What we are doing for cohabitants is good, but what we do for brothers and sisters who live together is bad. We should sort that out.

At the risk of appearing absolutist—that accusation was made against me earlier in the day—I support the amendments in the name of my colleague, Fergus Ewing. The absolutist position is that people need to be living together as if they were man and wife. I point out to Donald Gorrie that section 18(2) says:

"A person falls within this subsection if the person is (or was) living with another person as if they were husband and wife."

It is possible to amend section 18 by deleting the reference to living together as man and wife. If Donald Gorrie was so concerned about the issue, why did he not lodge an amendment that would do that? I share his view that we should not always determine our legislation on the basis of sexual relationships, but given that the bill deals with family law, to do so is probably not unreasonable in this case.

A year is a sensible period. It is not easy to argue that a relationship is enduring or long-lasting if it is shorter than that. Our giving sheriffs the opportunity to exercise a rebuttal presumption will protect the small number of people who are involved in the unusual cases that Mr Ewing and Cathy Jamieson referred to.

By including a definition of "cohabitant" in the bill, we will give cohabitation a new status. We already recognise it in some other laws, but we will now give it a particular status. People have to do certain formal things in order to become civil partners or to get married; that should also apply to cohabitees, so we should specify the length of time for which people must have lived together before they are considered to be cohabitees.

I urge members to consider supporting amendment 18A. In my view, members ought to support amendments 16 and 17 as well.

I do not support Fergus Ewing's amendments. The policy intention of our giving cohabitants the discretionary right to make a claim in the event of the death of a partner, or in a dispute following the breakdown of the relationship, is just, fair and equitable. The claim will be limited to determining of settlements as regards joint assets or financial contributions to the joint budget during the relationship.

It is not necessary to define a period of time in order to establish whether a relationship is cohabitation. It is clear that the two people must have a joint commitment to spending their lives together and that a brief or experimental relationship will not be covered. It is for the courts to determine whether the relationship qualifies as a cohabitation. I will therefore support amendment 18.

I was surprised that the minister got things slightly wrong—in my humble opinion—when she used the words "is a cohabitant". The bill will not create the status of cohabitant. Things will happen as a result of the bill's provisions on cohabitation only post hoc—in other words, after the relationship has ended. No rights are to be conferred on people during their cohabitation. That is an important point when we are trying to understand what the bill will do. It will not create a status of cohabitation, so the comparisons with junior marriage, junior civil partnership or whatever are somewhat misplaced.

I agree with the member, but does he agree that sheriffs should be free to make decisions under section 18 without having to set precedents on the length of cohabitations?

Pauline McNeill will be delighted to hear that I agree with the Executive line on that.

We must take cognisance of the fact that the existence of benefits that can be derived after cohabitation has ended will create prospective benefits that might modify the behaviour of cohabitants. However, we cannot escape from that consequence.

I remind the minister of a proposal that I made at stage 2. I would have liked to bring it back at stage 3, but I got no support for it in committee. With cohabitation, civil partnership and marriage, there is an escalating set of commitments that partners can make to each other to strengthen, deepen and improve the status of the relationship. The birth of a child is a golden moment—the minister has heard me say that before. As people are given information about their options when they go to register a death, I would like people to be given information about their options and the implications for their relationship when they register the birth of their child. However, that is not to be.

I support the Executive's line. I think that, on this one occasion, my colleagues have perhaps got it rather wrong.

As is understandable and right in a family law debate, we have heard much about marriage. However, it is important to redress the balance a little and say a bit more about cohabitation; after all, more than 160,000 couples in Scotland live in cohabiting-couple family households and more than 60,000 of those households have one or more dependent children. As has been said, almost half of all the children who are born in Scotland are born outside marriage. In this modern and forward-looking Parliament, it is essential that we give proper recognition, proper legal rights and proper protection to those individuals and—crucially—to their children.

I declare something of an interest in the matter: I have listened to many members talking about the longevity of their marriages, but I have lived with a partner for 17 long—long but good—years. We share two children, a home and a mortgage. We have shared many life experiences good and bad, and many cross words, some of which I suspect some members have overheard. Such relationships deserve no less recognition or protection than a marriage that has lasted a similar time. However, it is not only a matter of time, as some people have suggested, but a matter of commitment. Many cohabiting relationships demonstrate not only the financial characteristics and longevity, but the commitment, love and concern that many marriages demonstrate.

The end of a relationship raises specific issues. I well recall someone who had separated from a partner of 14 years recounting the number of people who had said, "Oh well, it's okay—at least you weren't married." I suggest that the emotional distress of separating from a partner whom one has loved, cared for and shared a life with while living together can be every bit as great as it is when people have been married. In fact, the situation can be made even worse by the fact that people have not had proper legal protection or recognition because they have cohabited.

Cohabitation may not have status in the law, as Brian Adam said, but it should have. I would have liked many aspects of the bill to go further, but I am more than happy to accept the Executive's position in detail and in general, because it will be a significant step forward in recognising and protecting tens of thousands of cohabitants and their children throughout Scotland. It is not before time.

Susan Deacon eloquently described what I, too, would have liked the bill to do, which is to give cohabitants even more protection than is being offered. We know that many people in society think that they have established what they call a common-law marriage—a marriage by cohabitation with habit and repute—but by the fact that they say that they live together there is no repute, so they have no protection. The bill is not before time.

I support the Executive's amendment 18 and oppose the amendments that my colleague lodged. Fergus Ewing made it plain from his speech that picking one year as an arbitrary time is nonsense. If people had stayed together for 11 months and 30 days, they could not establish that they were cohabitants, but if they had stayed together for 12 months and one day, they would automatically have the right to be cohabitants. That is ridiculous. I can imagine the court disputes that would arise over when cohabitation started in order to squeeze in extra days and weeks, so Fergus Ewing's amendments would not reduce litigation.

We must keep the bill flexible, as the minister's amendment is. One must always consider the facts and circumstances of a relationship. I will give an invented example. Two elderly people have known each other for years, their spouses have died and they are on their own. They remain friends and decide to move in together—to cohabit and to live together as man and wife. Regrettably, one of them dies two months into the relationship. In all those circumstances, we could see that they had made a commitment, but lack of time took away their opportunity to establish that they were cohabitants under the criteria that Fergus Ewing tries to set.

The presumption that would be provided for by amendment 18A is equally nonsensical. If we accepted such a presumption—which is Fergus Ewing's plan B—in the case of the couple in the plot that I related earlier, the surviving cohabitant would find that the presumption operated in his or her favour if the couple had been together for 12 months and a day but not if they had been together for 11 months and 30 days. We should not handicap sheriffs in that way. Sheriffs are perfectly capable of considering the facts and circumstances, as they do in cases of matrimonial breakdown. In the circumstances of the elderly couple in my example, the sheriff would be able to say that they were cohabitants and that the surviving partner was entitled to certain legal rights. In other circumstances, the sheriff would be able to decide otherwise.

I support Executive amendment 18 and I reject the amendments in the name of my colleague, Fergus Ewing.

If the minister needs to respond to any points that have been made in the debate, I can give her a couple of minutes to do so.

Briefly, the debate on group 14 has perhaps shown that, as I have heard it said before, whenever a number of lawyers get together in one room, there will be a number of different opinions. The debate has shown that that applies even when the lawyers concerned are members of the same political party.

On a serious note, it is important that we recognise the points that members from around the chamber have raised, which I hope will be reflected in the vote. As Susan Deacon eloquently outlined, people who are in long-term committed relationships need the same protection when things go wrong as is enjoyed by people in long-term married relationships. I hope that members will support amendment 18, which will ensure that the courts have the flexibility to provide that protection where it is needed.

In making a brief summation of the debate, Fergus Ewing should indicate whether he will press or seek to withdraw amendment 16.

I have listened with interest to all the speeches. Very few members agreed with me, but that is not a unique experience. However, some members ranged far beyond the specific scope of my amendments—the amendments in the next group are perhaps rather more important—which I lodged in an attempt to provide clarity for the courts. We should remember that it is our job to make law that is clear and certain. If we fail to do that, we might end up asking the courts to achieve the impossible.

That said, I believe that we have had an interesting debate that has been mostly on topic. Having achieved that, I seek, with the leave of members, to withdraw amendment 16.

Amendment 16, by agreement, withdrawn.

Amendment 17 not moved.

Amendment 18 moved—[Cathy Jamieson].

Amendment 18A not moved.

Amendment 18 agreed to.

Section 21—Financial provision where cohabitation ends otherwise than by death

Group 15 is on the matters that a court may take into consideration in making financial provision when a cohabitation ends. Amendment 22, in the name of Fergus Ewing, is grouped with amendments 46, 23 and 24.

The intention behind the setting up of the provision for financial claims of former cohabitants is set out in the Executive's explanatory notes to the bill, which state:

"On the break up of a … cohabiting relationship, one party may find themselves in a position of financial vulnerability".

Like other members, I was struck by the eloquence and passion of Susan Deacon's speech in the debate on group 14, but we need to go to the nub of the issue. What does the Executive claim will be achieved if the current words on the page remain in the bill when it becomes law?

In the stage 1 debate, the Deputy Minister for Justice said:

"We need to introduce greater certainty, fairness and clarity to the law, and to protect the legally vulnerable when a relationship ends."—[Official Report, 15 September 2005; c 19116.]

The aim of the bill is to protect the legally vulnerable. However, paragraph 193 of the Justice 1 Committee's stage 1 report points out that the committee, after doing its job thoroughly, could find no reference in the bill to financial vulnerability. The bill does not do what it says on the tin—it does not contain any provision to the effect that vulnerability is to be the justification for a financial claim.

Instead, the bill makes it clear that equity is to be the justification for a financial claim. Indeed, sections 19 and 20 provide the only two classes of rights that cohabitees will have, which relate to household goods such as furniture and furnishings and money or property that is derived through a housekeeping allowance.

It is important—especially in the light of what Susan Deacon said a moment ago—to clarify what protection will not be afforded to cohabitants. That was covered by Hugh Henry at stage 2. A vulnerable woman who splits from her partner after 10 or 20 years, with children, will have no claim whatever against the matrimonial home if it is in her partner's name. Under the provisions of the bill, she will have no claim whatever to the pension of her male partner, if he has a valuable pension right; she will have no claim whatever to any car, caravan or other vehicle; and she will have no claim whatever to any securities—any stocks or shares. She will also, perhaps, have no claim to her male partner's domestic pet.

Members may argue—as Susan Deacon did with great passion, and I agreed with her sentiments—that we are providing protection for vulnerable women; however, we are not. We are doing the exact opposite. The minister admitted to the committee that there will be no protection for the female partner and that she will have no claim against a house in the male's name; no claim against the male's pension; no claim against stocks and shares; and no claim against money except in very limited circumstances. How much would a claim for the average household furniture be worth? Second-hand furniture is worth little—we are talking about a sale value of a few hundred pounds.

I agree with the sentiments that Susan Deacon expressed and I admire the aplomb with which she expressed them. I agree also with the sentiments that Pauline McNeill, Mary Mulligan and others expressed at stage 2. However, the bill will not protect the vulnerable. It will not safeguard the children and it will not do what it says on the tin. There is no reference to vulnerability: the word "vulnerable" does not appear anywhere in the bill.

My amendments do not address those fundamental criticisms. I am afraid that, if members agree that the bill will take away rather than confer protection, their only option is to vote against the bill. That is what I will do later, with sadness. My amendments are intended to make it clear that it is the vulnerable partner and the children who should be protected to the limited extent that they can be protected under the bill. Ironically, if the bill is passed it will allow a wealthy member of a formerly cohabiting couple to make a claim. It will give each partner rights; therefore, the wealthy male with the job, the house, the pension and the car will also have a claim to half the furniture and the household goods.

I hear all that the member is saying and do not disagree with his analysis. Is he suggesting that we should extend the rights for cohabitants in the bill?

No, I am not. However, the committee said that a claim could be made by a wealthy person—that was the committee's conclusion. I mention that because it may not be obvious to members who were not able to attend all the committee meetings.

I move amendment 22.

I may not agree with Fergus Ewing on anything else, but I agree that we must provide clear law for the courts. We are discussing the most significant provisions in the bill, because they are new law that sheriffs have not dealt with before. That is why I have lodged some probing amendments. We are giving wide discretion to sheriffs, so we must be clear about how we want to guide them.

At first sight, the provisions are not that easy to understand. We discussed section 18, which determines whether someone is in a cohabiting relationship. Every case will be different and any determination will depend on the circumstances, the nature and extent of the financial arrangements and the length of the relationship. The length of the relationship should not define a de facto cohabitation; rather, it should be the combination of all those circumstances. That is what section 18 tries to achieve.

I want to clarify how the provisions should be used. Fergus Ewing was not quite right to suggest that the interests of children would necessarily be affected if they were born of cohabiting relationships. I am in favour of ensuring that when it comes to children's rights, it does not matter whether the parents are married or cohabiting. However, there will be differences, which we need to balance, between the rights of cohabitants, married couples and civil partners. The Executive is right to identify hard cases in which one partner has simply walked away from a relationship after a long period and the courts are unable to grant the remaining partner any kind of award, and to balance that against the rights of the partner who does not want to make a lifelong commitment to the relationship.

The financial provisions for when cohabitation ends otherwise than by death are contained in section 21(3), which refers to the economic advantage derived by the defender

"from contributions made by the applicant",

and to economic disadvantage suffered by the applicant in the interests of the defender or any children.

How will the provisions be used once the sheriff, using their discretion, has made the decision that someone is a cohabitant? It is clear to me now that the provisions are meant to be used by the sheriff to establish the economic advantage or disadvantage to the person who applies for a discretionary payment.

To that extent, the provisions will protect vulnerable people. I am now satisfied that we are not dividing wealth, that the sheriff is expected to find out the exact circumstances of a case and, if a child is involved, to ask the partners, "Did you stay at home and look after that child? Did you give up your career?" Sheriffs will be asked to look at those issues in arriving at their decision.

At the end of the day, I want to make clear the nature and extent of any financial arrangements that exist between the parties. That is the crucial element. If we are to make those new provisions, they must be clear. I will not move amendment 46, but I want an answer to my questions so that we can be clear about how sheriffs are expected to deliberate on the provisions.

I am diametrically opposed to my colleague Fergus Ewing on this matter—I much prefer the substantive law. Pauline McNeill's point that we are in uncharted waters is clearly the case and matters will have to develop.

As the minister correctly touched on earlier, we must recognise the new world in which we find ourselves in this 21st century. People choose not to marry and that is a matter for them—some people disagree with that and others do not. It would be fundamentally wrong if money and access to legal rights that we think are important were available only on the basis of hardship—an agreement and obligations have been entered into and that would therefore be inappropriate.

We are talking about creating rights. That takes us back to the corollary that with rights come responsibility and obligations, not simply when one party faces hardship, but when both parties have signed up to and entered into a relationship. If that relationship breaks down, the outcome should not simply be that someone should face economic hardship—they have broken the relationship that they made. They might not have taken marriage vows before a minister or a priest, but they entered into that arrangement so its breakdown must be dealt with.

I disagree fundamentally that some funding should be required to protect a child's welfare. At the end of the day, the child was born of a relationship and whether or not it was born in wedlock, the parents have a responsibility. Simply to say that payment will be made only if there is some question of vulnerability or hardship on the part of either parent is entirely unacceptable.

That applies especially to males, who must take responsibility for the child they have fathered. Whether or not the mother has a well-paid job, we expect the father to contribute financially to the child because it is their responsibility to do so—that touches on the points that were made about contact. Fathers have fatherly obligations that are not simply monetary and that is why we should leave the provisions as they are in the bill.

I support the current provisions in the bill, which go some way towards ensuring that a just and equitable settlement, which recognises what they have put into their relationship, is available for cohabitants either on the break-up of that relationship or on the death of their partner.

As I have indicated, in trying to establish the provisions for cohabitants whose relationship breaks down other than by death, the Executive has been at pains to ensure two things: first, that any financial award that the courts make to an applicant addresses the net economic disadvantage that that person may face as a direct result of joint decisions that were made by the couple during the relationship; and secondly, that the economic burden of caring for a child that cohabitants have had together is shared until the child is 16. Those points were picked up by Pauline McNeill and Kenny MacAskill.

I want to speak about Pauline McNeill's amendment, in particular, because I understand that in amendment 46 she was seeking to put matters beyond doubt. We looked at the amendment very carefully and have reached the conclusion that it could restrict the discretion of the court, such that a capital sum could be awarded only in respect of the two matters that are specified in section 21(2). Although those are important matters that we would want the court to take into account, we also want the court to be able to consider any and all relevant factors when deciding whether to make an award under section 21(2)(a), particularly the tests of economic advantage and disadvantage that are outlined in section 21(3)(a) and (b).

I will comment briefly on Fergus Ewing's amendments. In my view, the member has misunderstood what the package is intended to achieve. It is not about protecting one partner who is or has been economically weaker than the other. It is not about seeking to replicate the financial arrangements that apply to spouses or civil partners. I accept that some members may wish that to be the case, but the bill does not do that. Cohabitants are under no legal obligation to aliment each other during their relationship, so there is no reason why we should seek to ensure that they do so when the relationship is over. However, it is important to achieve fairness. That is why we have adopted the provisions that are set out in section 21. Those provisions will ensure that one partner compensates the other for any net economic disadvantage that has resulted from the relationship that they formed together and that they will share the cost of caring for their children. We believe that that offers fairness to both parties, while respecting their rights to live as they choose without the Government imposing other financial obligations.

I urge the Parliament to reject amendments 22, 46, 23 and 24.

I understand fully the minister's position; I have understood it all along. The debate has been useful because it has allowed some clarification of just how minimal the so-called protection that will be afforded to vulnerable females, in particular, will be. I did not state that there could be a payment only when there was hardship. Amendment 23 states that there could be a payment in two circumstances: when there was hardship or where there were children. The Child Support Act 1991 provides an obligation for aliment that will continue irrespective of the provisions of the bill—and rightly so. Those who argued that amendment 23 would somehow affect that are entirely wrong and confused about the amendment.

If there is confusion in the chamber about what the bill will do and what protection it will provide, how can we expect people in the country to be aware that, when they are told that they will get legal protection—the minister has repeatedly used the word "safeguard"—that protection will probably relate to a few sticks of furniture and a small amount of cash, rather than the full rights that are afforded to man and wife through the institution of marriage, which, if I were a feminist, I would certainly support? In Scotland, marriage fully protects the vulnerable female, whereas the provisions that we are debating would cause great uncertainty and confusion. If any of us went to any street in Scotland and asked people whether they were aware that we are doing this, I suspect that fewer than one in 100 of them would have the slightest idea.

I seek leave to withdraw amendment 22.

Amendment 22, by agreement, withdrawn.

Amendment 46 not moved.

Group 16 concerns the financial provision for an artificially conceived child where cohabitation ends. Amendment 3, in the name of Marlyn Glen, is the only amendment in the group.

Amendment 3 relates to section 21(2)(b), which deals with financial provisions, separation of cohabitants, and the future economic burden of caring for a child of cohabitants. The current policy is that the financial provision should be limited to children whom the cohabitants have had together, rather than to a child of one partner and a third party. However, the bill does not deal with female cohabiting couples who have a child together. It is not unusual for female couples to have a child via artificial insemination by donor. That may be done through a licensed clinic or through private arrangements with a donor. If it is done through a licensed clinic, the partner who bears the child will be its legal mother, and the child will have no legal father. If it is done privately, that donor will be the legal father.

However, in both cases the two female partners have decided together to take on the responsibility of having and caring for a child. They decided that in the same way as a man and woman who cohabit and have a child. Where women are civil partners, section 9(1)(c) of the Family Law (Scotland) Act 1985 allows the court to make financial provision for the cost of caring for such a child after the dissolution of that partnership. However, without amendment 3, if women cohabit and are not civil partners, their responsibilities for the child are not recognised and their child is not protected. I do not seek to change their legal status, regardless of whether the second partner is a parent, nor do I want to change legislation that should be more properly considered in the UK Parliament. I want to ensure that children in Scotland are protected.

Amendment 3 is drafted to ensure that it covers only cases in which both women cohabitants jointly took the decision to have the child. That is the same-sex equivalent of a mixed-sex cohabiting couple deciding to have a child. In short, this is one of those situations in which ensuring equal treatment of the families of mixed-sex and same-sex couples requires a specific provision in the bill, rather than simply using the gender-neutral term "cohabitant".

I move amendment 3.

Under rule 9.8.4A, I propose to extend the next deadline as set out in the timetabling motion. The debate on group 16 must therefore conclude by 17.08. I ask members to make only very brief speeches.

I agree with everything that Marlyn Glen said. I supported her amendment at stage 2, and I continue to do so. That is because the bill is about one thing: better facilities and opportunities for children. The bill is about children and giving them better rights. As Kenny MacAskill has said many times, the bill is also about people taking responsibility for their lives in a changing society. Today's society is entirely different, and Marlyn Glen described many of those differences.

Amendment 3 addresses a specific issue and a particular type of couple, that is, a lesbian couple. We have to acknowledge that many couples live in that type of relationship in our modern society. I do not believe that the bill protects the person who bears the child and who will often rear the child while the other partner earns the salary and gets the pension. If that person then disappears, the woman who has had the child is left in a vulnerable position. I do not think that that is right and I ask the minister to give us undertakings about it. Many things will remain to be addressed after the bill has been passed—I do not doubt that it will be passed—and this is one of the issues to which we will have to return to get some sort of resolution. If amendment 3 is not agreed to, we must try to press our colleagues in London to change the Human Fertilisation and Embryology Act 1990.

Nobody has said anything to me that suggests that we could not include in the bill the provision that is proposed in amendment 3.

At the risk of stating the obvious, maternity is a matter of fact and paternity is a matter of evidence. In this case, that is the difficult issue. How are we to know that the non-child-bearing partner agreed to the conception?

I would be astonished if any couple—two ladies—out there who were proceeding along these lines thought that rights would result from that kind of act. A deliberate act to create a child should be accompanied by a deliberate act to protect its future. Even amendment 3 would not do enough; it would do much less than would a deliberate act to protect a child's future. The provision that is proposed in the amendment is unlikely to be able to be implemented meaningfully.

This matter has to be set in the context of what we discussed earlier in relation to section 21, which provides for two related but distinct awards—the award to cover the net economic disadvantage that resulted from the breakdown of a relationship and the future child care costs. That is, of course, separate from children's alimentary needs, which are addressed fully and adequately by the Family Law (Scotland) Act 1985 and the Child Support Act 1991.

In the case of future child care costs, the Executive is applying the principle that cohabitants who have a child together should remain jointly responsible for meeting expenses that are incurred by the adult who cares for the child after separation. That includes cohabitants who have a child as a result of treatment licensed under the Human Fertilisation and Embryology Act 1990.

We are setting out not to introduce additional alimentary provisions for children, but to reflect the principle defined in section 9(1)(c) of the 1985 act that any economic burden of caring after divorce for a child of the marriage under 16 years should be shared fairly by the parties. The intention has always been to limit that provision to children of whom the cohabitants are the parents. The reasons for that distinction have been well rehearsed in the policy memorandum and in a number of subsequent exchanges with the Justice 1 Committee.

We recognise that the provisions exclude certain circumstances, such as when children are conceived by artificial insemination by couples using a sperm donor from an unlicensed clinic. I heard the arguments that Marlyn Glen has made around amendment 3. However, it could well be argued that people who choose to have a child together in whatever circumstances owe a moral responsibility to one another and to the child. I certainly would not argue with that principle. However, amendment 3 seeks to impose an on-going legal responsibility on someone who has no legal relationship with either the parent or the child concerned, which we do not think is appropriate. If a couple use a sperm donor in an unlicensed arrangement, only the person who carries and gives birth to the child is legally a parent; the other member of the couple is not the child's parent as a matter of law.

The question of establishing a new legal relationship between adults and children is not for the bill. In the particular circumstances in question, we believe that the remedy lies in legislation on human fertilisation and embryology, which is a reserved matter and would therefore be considered by the Westminster Parliament. At present, the definition of a parent in such circumstances is defined under the act to which I referred.

The Department of Health at Westminster, which has recently ended a consultation on the 1991 act, is considering the status of same-sex couples with regard to children who are conceived by assisted means. Any change to the legal status of such couples will be dealt with in any change to the reserved legislation, as it should be. Such changes would apply in Scotland.

We believe that the time to make any changes such as those that have been proposed by Marlyn Glen would be if the status of a parent were to be redefined in the legislation on human fertilisation. It may well be that no amendment to Scots law would be necessary, depending on the terms of that legislation. However, we cannot necessarily say that at this stage.

Given the existing provisions, I reiterate that we do not believe that we should make such a change to the law at this time or in this bill. Therefore, I ask Marlyn Glen to withdraw her amendment.

I realise that the matter is complex, but I do not agree at all with the idea that United Kingdom legislation is needed to do what I propose. There is no intent in the amendment to change the legal status of parents. The amendment seeks to protect children by ensuring that, if a cohabiting couple split up, the on-going expenses of the child would be covered. I am disappointed that the Executive will not support the amendment, but I hope that I can get some assurances that the issue will be considered in an on-going way and that the situation will be sorted out. We are talking about children who are living among us and who need protection as much as anyone else does.

I seek leave to withdraw amendment 3.

Marlyn Glen has sought leave to withdraw amendment 3. Is that agreed?

No.

The question is, therefore, that amendment 3 be agreed to. Are we agreed?

No.

There will be a division.

For

Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Fabiani, Linda (Central Scotland) (SNP)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Ingram, Mr Adam (South of Scotland) (SNP)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (North East Scotland) (SNP)
Maclean, Kate (Dundee West) (Lab)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Sturgeon, Nicola (Glasgow) (SNP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
White, Ms Sandra (Glasgow) (SNP)

Against

Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
MacDonald, Margo (Lothians) (Ind)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Campbell (West of Scotland) (Ind)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Ind)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinney, Mr John (North Tayside) (SNP)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

Abstentions

Glen, Marlyn (North East Scotland) (Lab)
Pringle, Mike (Edinburgh South) (LD)

The result of the division is: For 22, Against 91, Abstentions 2.

Amendment 3 disagreed to.

Amendments 23 and 24 not moved.

Section 22—Application to court by survivor for provision on intestacy

Group 17 is on provision for a cohabitant dying intestate. Amendment 47, in the name of Pauline McNeill, is grouped with amendments 48 and 49.

Amendment 47 is designed to ensure that we are clear about how section 22 should be applied by the courts when estates are divided up.

There is no doubt that this is a complicated area—it is probably more complicated than the issues that we have previously discussed. The committee got itself into all sorts of knots trying to understand the provisions. The situation is straightforward if there is only the cohabitant to think about. However, if there are husbands, wives and children in the scenario, it becomes harder to understand how the provisions will work in law. Under section 22(11), debts and liabilities and the rights of the spouse are disposed of first. Normally, the children's legal rights would be disposed of next, leaving the rest to the free estate. However, section 22 gives the sheriff the discretion to consider the existence of other rights when deciding what sum to award to a cohabitant.

Amendment 47 tries to draw out whether the court should be required to take account of the length of the relationship for the purposes of determining whether it is a cohabiting relationship, which it has to do under section 18. The sheriff must take into account the size and nature of the deceased's estate, any benefit received by the survivor and the nature of any other rights and any other matter that the court considers appropriate.

The lesson for all of us is that we need to ensure that our constituents realise the importance of drawing up a will in every case, so that they do not die intestate and can avoid arguments and determine where their estate goes. However, where a will does not exist, we need to be clear. I am not arguing that the length of the relationship per se should be included in section 22, but I want to note where sheriffs are expected to take it into account. Section 22(3)(d) refers to "any other matter". If I am told that sheriffs are meant to consider the length of the relationship under that provision, I will be a lot happier. I realise that the consideration will not always apply, but I am concerned about the sheriff having total discretion in the situation in which the cohabitation was short and there are children. I would be concerned if no account was taken of the length of the relationship and a large capital sum was awarded to the cohabitant, but the children received nothing from the estate.

Amendment 48 seeks to avoid doubt. Once the sheriff has done all that, there is the Succession (Scotland) Act 1964, which states the order in which the free estate has to be divided, starting with husbands and wives, children, brothers and sisters and so on. Given that cohabitants are not mentioned in the 1964 act, I want to ensure that any decision that is taken by a sheriff under section 22 cannot be challenged using the 1964 act. I think that the answer from the Executive will be that that is not the intention, which is what I want to hear for the purposes of clarity. It would be wrong if, in giving discretion to the sheriff, we enabled children and brothers and sisters who were concerned about the decision to use the 1964 act. I should make it clear that I understand that the legal rights concerned are common-law rights and that we are talking about the remainder of the estate and nothing else. If I hear the answers that I am looking for, I will not press amendments 47 and 48.

I move amendment 47.

Section 22(6), to which amendment 49 applies, states:

"Any application under this section shall be made before the expiry of the period of 6 months beginning with the day on which the deceased died."

Therefore, on intestacy, a cohabitant must apply within six months of the death. Amendment 49 would change "deceased died" to

"death of the deceased was established".

That seems like a small change, but it covers the situation where the cohabitant is a fisherman whose boat is presumed lost with all on board, but there is still hope. The death might not be established for seven months or seven years. The rights of the surviving cohabitant would be lost because the person would not be legally dead until more than six months from the actual date of death had elapsed. Amendment 49 aims to protect people who are in the position where death is established on a date that is significantly distant from the date on which the death is determined to have happened.

I accept that the minister wrote to the Justice 1 Committee on that point to explain that, notwithstanding what section 22(6) says, everything is okay. I confess to the minister that on that occasion I was unable to award a clear English award for the Executive's response—I did not understand more than three words and they were "Dear Stewart".

I always thought that Stewart Stevenson was numerate.

Does the minister consider that the fact that cohabitants' rights upon death will apply only where there is no will is consistent with the Executive's aim of protecting the vulnerable? Especially if two cohabitants have fallen out in the period shortly before one of them dies, there is a great incentive for one to exclude the other from their will. The bill will not provide the necessary protection, because a cohabitant could be excluded entirely by a will. That is completely different from the situation between a husband and wife—a surviving spouse has indefeasible legal rights, which take priority under the Succession (Scotland) Act 1964, which Pauline McNeill mentioned. The wife has the protection of being entitled to a house, up to a fairly substantial value, and to a cash sum, but a surviving cohabitant will have no such right.

The current system for winding up estates has clear rules on intestacy, with various benefits. The law sets out a scheme under which estates are wound up. However, the bill will create a discretionary award, not a rules-based payment, which means that the sheriff will have to determine how much is payable, which will introduce uncertainty. Where uncertainty arises in the winding-up of an estate, it has at least the potential to encourage and generate acrimony. I take this brief opportunity to point out yet again that the bill does not do what it says on the legal tin.

I welcome amendment 48, which seeks to clarify the bill on the important point of prior legal rights. I also welcome amendment 49, in the name of Stewart Stevenson, which raises an important issue about the need to establish a recognised date of death when the actual date is difficult or impossible to determine.

In establishing a right for a cohabitant to apply to the court for a discretionary award when their partner dies intestate, we will introduce a degree of fairness into an unhappy situation, with provisions that are just and equitable. We have tried to ensure that any surviving spouse's or civil partner's position will remain intact and that the total award to a cohabitant will be limited to the amount to which they would have been entitled had they been a spouse or civil partner of the deceased. Beyond that, the courts will be expected to decide what is fair and reasonable in the circumstances of each case, within the rules that are set out in section 22.

The court will first of all refer to the definition of "cohabitant" in section 18. The applicant will have to satisfy the test that is set out there before the court considers the application for an award. The court will then consider the factors that are set out in section 22(3), which include

"the size and nature of the deceased's net intestate estate"

as well as

"any benefit received, or to be received"

by the surviving cohabitant from the estate and

"the nature and extent of any other rights against, or claims on, the deceased's net intestate estate".

Amendment 47 seeks to introduce an additional factor for the court to consider in determining the award: the length of time that the cohabitants lived together. That displays a wee bit of misunderstanding of the discretion that will be available to the court. Section 18 will determine whether the applicant is eligible to be considered for an award. Once that has been established, the discretion that will be available to the court will relate to the circumstances of the individual estate. Therefore, the court will not carry out an exercise in determining who is more worthy or deserving or whether someone who lived with their partner for 10 years is entitled to more than they would have got if their partner had died six years earlier; instead, the court will examine the size and nature of the estate and the other legitimate claims that can be made on it. A cohabitant who lived with someone for 10 years where the deceased had no surviving spouse or children might get a different outcome from a cohabitant who lived with a partner for 10 years but whose partner remained married and had children with the spouse and/or another previous partner.

Amendment 48 seeks to make matters clear by putting it beyond doubt that the calculation of any children's legal rights should be postponed until the discretionary award that is to be made to the cohabitant has been satisfied. However, that would fetter the discretion of the court in such matters. The issue is more complex than amendment 48 suggests; it is not simply an either/or situation. Among other matters, a child's claim on the estate would be taken into account in the decision on the award. In certain circumstances—for example if the cohabitant was entitled to a large pension settlement from the deceased's estate—the court might wish to set aside a sum to meet the child's legal rights in their entirety before deciding on the award to the cohabitant. In other cases, the circumstances described by the amendment would be appropriate. The matter must be left to the discretion of the court, which will take into account all the facts and circumstances.

I hear what the minister says. Would he expect sheriffs to consider the length of the relationship?

Clearly, that would be one of a number of factors that would need be taken into account; it is not appropriate to specify one factor.

I move to amendment 49, in the name of Stewart Stevenson. I am sorry that he understood only the three words "Dear Stewart". I will try to clarify the issue; I will write again to see whether we can provide more clarity.

As Stewart Stevenson said, he seeks to address an unusual situation in which there has been some time between the person dying and a declarator of death being made. We are satisfied—this is the nub of the letter, although the legalese may not have been understood—that the terms of section 22 are sufficiently wide and give the court sufficient discretion to ensure that all the circumstances that he raises can be covered. I urge Parliament to reject amendments 47, 48 and 49.

Having heard what the minister said, I take it that the length of the relationship is one of the factors that could be taken into account. I recognise that it is not the only factor and I am not saying that it should be taken into account in every case. I wanted that to be made clear.

I am happy with what the minister said on amendment 48. I am trying to ensure that there is no legal challenge once a sheriff makes a decision. I will seek to withdraw amendment 47 and not move amendment 48.

Amendment 47, by agreement, withdrawn.

Amendment 48 not moved.

Amendment 49 moved—[Stewart Stevenson].

The question is, that amendment 49 be agreed to. Are we agreed?

No.

There will be a division.

For

Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Canavan, Dennis (Falkirk West) (Ind)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lochhead, Richard (North East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Swinney, Mr John (North Tayside) (SNP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
White, Ms Sandra (Glasgow) (SNP)

Against

Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
MacDonald, Margo (Lothians) (Ind)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Campbell (West of Scotland) (Ind)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Monteith, Mr Brian (Mid Scotland and Fife) (Ind)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tosh, Murray (West of Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

The result of the division is: For 34, Against 85, Abstentions 0.

Amendment 49 disagreed to.

I am minded to accept a motion without notice, under rule 9.8.5A of standing orders, to extend the total debating time for amendments by 10 minutes to five hours five minutes.

I inform members that if the motion is agreed to, I will not use my power under rule 9.8.5B to move forward decision time—it will stay at 6.30 pm.

Motion moved,

That the debate on group 20 be concluded no later than 5 hours 5 minutes after proceedings begin.—[Ms Margaret Curran.]

Motion agreed to.

Section 24—Cohabitation: domestic interdicts

Group 18 is on the definition of "child" in relation to family interdicts. Amendment 50, in the name of the minister, is grouped with amendments 51 and 4.

Amendments 50 and 51 are technical. We are amending the definition of "child" in section 18(3) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 to follow more closely the definition that is used elsewhere in the act. As section 24 of the Family Law (Scotland) Bill is adding new provisions to the 1981 act, for the sake of consistency it makes sense that "child" has the same definition throughout.

I turn now to amendment 4. Section 8 of the bill amends the Matrimonial Homes (Family Protection) (Scotland) Act 1981 by extending matrimonial interdicts to include not only a matrimonial home but any other home occupied by the applicant, the applicant's place of work and the school attended by any child in the applicant's permanent or temporary care. Section 24 of the bill makes similar provision for domestic interdicts for cohabiting couples in relation to their family home.

Those changes are replicated for civil partners in schedule 1. However, the wording that is used at section 8(2), new paragraph (b)(iv), to describe schools attended by children in the care of an applicant spouse, has not been mirrored exactly in the drafting of the equivalent provision for applicant civil partners, which is new paragraph (b)(iv) under schedule 1 (6)(a), which will become part of section 113(2)(b) of the Civil Partnership Act 2004.

I understand that amendment 4 aims to bring the drafting of the relevant interdict provisions in schedule 1 into line with that for matrimonial interdicts in section 8 and domestic interdicts in section 24. I am therefore happy to support amendment 4, which is very useful.

I move amendment 50.

Amendment 4 extends protection to cover all children, whatever the gender mix of the adults who are bringing them up. As such, it is a very important amendment.

I have a little factual question about the use of the word "attended" in new paragraph (b)(iv). I am not clear in law what tense is applied there. If it were the past tense, it would cover a very wide range of schools. Possibly a wide range of children in care might apply. It is just a clarification.

I am sorry, but I am not able to give that specific clarification. Do we want to delay proceedings till I find it? I am actively searching for the provision among my papers—I am not sure of the tense. As well as being a mathematical expert, Stewart Stevenson is clearly a language expert.

Amendment 50 agreed to.

Amendment 51 moved—[Hugh Henry]—and agreed to.

After section 26A

Group 19 is on the termination of power of attorney on dissolution of civil partnership. Amendment 25, in the name of Cathy Jamieson, is the only amendment in the group.

If you will bear with me, Presiding Officer, I am still seeking that word. I believe that "attended" means "going to", but I do not know what that then does.—[Laughter.]

The effect of amendment 25 is to amend the Adults with Incapacity (Scotland) Act 2000 at section 24 to include civil partners, as well as married people, in the provisions relating to the termination of a power of attorney, thus ensuring that civil partners are treated in the same way as spouses in the legislation.

I move amendment 25.

Amendment 25 agreed to.

Section 34—Short title and commencement

Amendments 52 and 53 not moved.

Schedule 1—Amendments of the Civil Partnership Act 2004

Amendment 26 moved—[Hugh Henry]—and agreed to.

Amendment 4 moved—[Marlyn Glen].

The question is, that amendment 4 be agreed to. Are we agreed?

No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
MacDonald, Margo (Lothians) (Ind)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Campbell (West of Scotland) (Ind)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Wallace, Mr Jim (Orkney) (LD)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

Against

Adam, Brian (Aberdeen North) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Gorrie, Donald (Central Scotland) (LD)
Hyslop, Fiona (Lothians) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Monteith, Mr Brian (Mid Scotland and Fife) (Ind)
Robison, Shona (Dundee East) (SNP)
Tosh, Murray (West of Scotland) (Con)

Abstentions

Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Lochhead, Richard (North East Scotland) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Scanlon, Mary (Highlands and Islands) (Con)

The result of the division is: For 92, Against 10, Abstentions 11.

Amendment 4 agreed to.

Amendments 54, 27 and 28 not moved.

Amendments 5 and 29 moved—[Cathy Jamieson]—and agreed to.

Schedule 2

Minor and consequential amendments

Amendment 30 moved—[Cathy Jamieson]—and agreed to.

Schedule 3

Repeals

Group 20 is on the Lord Advocate's role as party to proceedings in actions for divorce or the dissolution of civil partnerships. Amendment 31, in the name of the minister, is grouped with amendments 33 and 34.

Amendments 31, 33 and 34 seek to add three minor repeals to schedule 3. Section 19 of the Court of Session Act 1988 makes provision for the Lord Advocate to enter into any actions of declarator of nullity of marriage or for divorce. Section 38B of the Sheriff Courts (Scotland) Act 1907 makes equivalent provision for actions that are brought in the sheriff court. Section 129 of the Civil Partnership Act 2004 makes corresponding provision for actions of declarator of nullity of a civil partnership or for dissolution of a civil partnership. That was done to ensure equal treatment for civil partners. However, the power is outdated and has rarely been used in the past 20 years. Persuasive arguments have been made that there is no clear need or justification for the retention of the statutory provision in question.

I move amendment 31.

Amendment 31 agreed to.

Amendments 32 to 34 moved—[Hugh Henry]—and agreed to.