Family Law
The next item of business is a debate on motion S2M-1464, in the name of Cathy Jamieson, on "Family Matters: Improving Family Law in Scotland", and two amendments to the motion.
I am glad to have the opportunity to open this afternoon's debate. As 2004 is the 10th anniversary of the United Nations year of the family, it is particularly fitting that the Parliament is debating family law reform. This issue potentially affects us all, and we all have strong views on it, which no doubt will be expressed during the debate.
It is worth recognising that Scotland is changing—indeed, it has changed—and that our legal framework needs to catch up to ensure that all Scotland's people have legal protection and that our children are not left vulnerable or impoverished. I want to make it clear at the outset that I am not talking about big or intrusive family law that will interfere in family life. The state should play little or no role in families that are strong and are functioning well. Family life should, wherever possible, be an issue for families. However, we can help by providing the right kind of support when families hit a rocky patch; we also have a role in establishing a sensible framework of legal safeguards for use when, sadly, family relationships break down.
Children do well when the adults in their lives have a stable relationship and suffer when there is adult conflict. As a result, my goal is to ensure that services are available to all families who are under stress and that issues are dealt with before they threaten relationships. By doing that, we will reduce pain and avert emotional and—in some cases—financial costs. Our family counselling and mediation services are currently uneven and are not well linked to local authority social work and education services. Quite often, couples complain that they face obstacles because of the way in which services are organised.
We need to face some hard questions about how we structure and resource family support. Although such questions will not be answered overnight, I have started the process with the main voluntary sector bodies by providing new money for a change programme that will help them to integrate their core functions. Supporting stable families is a major and important agenda and must be tackled in the round.
Children's views are held supreme in the Children (Scotland) Act 1995. Will the minister consider building protection into any future legislation for those children who are caught up in the disturbing situations that she has referred to who want to maintain contact with the wider family circle, particularly grandparents?
I will address that point in more detail later. As the Executive's motion makes clear, we believe that the position of children and their views are very important.
We are consulting on a range of issues that will help us to shape the detail of family law reform. I want to highlight two or three of those issues. First, we have to tackle some of the current problems and misconceptions surrounding the issue of unmarried fathers, especially as we know that about 40 per cent of children are born to unmarried parents. One of the common misconceptions is that being named as the father on a birth certificate confers parental responsibilities and rights. Of course, that is not the case. The law in Scotland does not give unmarried fathers automatic recognition. That would not be a problem for relationships that are happy, stable and functioning, but it can be a problem if the relationship breaks down.
As a result, we propose that joint registration of a child by an unmarried couple will confer the same responsibilities and rights on both parents. We believe that that will be fairer for unmarried fathers and, above all, should be in the best interests of the child. That said, I acknowledge that people have some concerns about situations that feature violent relationships. We will continue to ensure that the child's needs are considered.
People have strong views about divorce. We are making it clear that we propose to reform divorce law in Scotland. I want to minimise the acrimony in divorce and enable couples who have concluded that they need to end their marriage to do so without unnecessary conflict and recrimination. That is why we propose to reduce the minimum period for which couples must live apart before a divorce is granted without consent from five years to two years and to reduce the minimum period for divorces with consent from two years to one year. I believe that that would assist the children of a marriage to come to terms with what can be one of the most stressful experiences that they can have. I do not believe that the proposal would create, or increase, instances of divorce; I believe that it would be fairer for the parents involved. Above all, we ought to consider the best interests of the children.
On divorced fathers, will the minister consider the possibility of joint residence rights? I am aware that instances in which it is natural for a mother to be given residence rights lead to conflict, which I do not think is in the best interests of the children.
The important thing is the best interests of the children, which ought to prevail at all times. It is unhelpful for adults to squabble, argue and use children as pawns in the process. Whatever we do in the proposed bill, we must find ways of ensuring that such situations do not arise and of taking account of the children's views.
Another issue on which people will have strong views is legal protection for cohabitants. If family law is to reflect Scottish society truly, we must recognise that many committed couples choose not to marry. Increasing numbers of children are born and raised in cohabiting families. For many people, cohabitation and parenting now go hand in hand. The most recent census showed that there are more than 200,000 cohabiting couple households with one or more dependent children. However, there is considerable confusion about the legal position of cohabitants.
Will the minister take an intervention?
I want to move on, if I may, because I will end up running out of time.
Surveys suggest that more than half of Scots believe that cohabiting couples have common-law rights that give them the same rights as married couples. Of course, that is not the case. The present law makes some provision for cohabiting couples, but legal protection is limited. That vulnerability sits uncomfortably alongside the significant number of Scotland's children who are part of cohabiting couple families. The status quo is simply not an option when many children are left in families without proper legal safeguards.
We do not propose that cohabitation should have equivalent status with marriage. Our objective is to introduce basic legal safeguards for when a relationship ends or one party dies. Our proposed reforms would not undermine marriage or the freedom of those who have chosen not to marry.
I will say a word on the amendments, beginning with Annabel Goldie's, although, obviously, I have not heard her speak yet. In common with other countries, Scotland has seen significant changes in family make-up. We need to provide stability through legal safeguards for children and adults. We recognise and value strongly the institution of marriage, but we also recognise and acknowledge that family composition is diverse. Legislation must be able to accommodate that diversity, support all family units and enable them to play a part in society. I do not believe that the special place of marriage—which is, indeed, very special for many of Scotland's people—is undermined by any of our proposals.
There is nothing in the wording of Nicola Sturgeon's amendment with which I would disagree in principle. Indeed, we recognise that cohabitation has moved from being a minority situation to being a dominant family type in Scotland. As I said, it is not our intention to extend to cohabitants the same legal framework as exists for marriage, but we need to introduce basic legal safeguards that will come into play when a relationship ends. However, we want to give an opportunity in the debate for all the issues in our consultation document to be explored. Again, I have not heard Nicola Sturgeon speak yet, but I ask her to recognise that her amendment refers to only one of the issues that is covered in the consultation document. At this stage, I would not want to single out only one of the issues in an amendment. I hope that she has heard the assurances that I have given today and that she will consider withdrawing her amendment so that we can unite at this point around the needs of children and young people as a priority.
I have a couple of points on step-parents. It will be very important that we address the changing pattern of family formations, because one in four marriages now involves people who have been married previously. Therefore, increasing numbers of children live in families in which step-parents care for them but do not have parental responsibilities and rights. Around one in every 12 families in Britain includes stepchildren, which is why there is a point in the consultation document about whether it should be possible for step-parents to acquire parental responsibilities and rights, when the birth parents agree to that.
Phil Gallie asked about contact between children and their wider family. There is no doubt that children's lives are greatly enriched by the involvement of their wider family and we seek to promote that. Such contact is usually welcomed by parents, but sadly that is not always the case. When parents separate, members of the wider family—especially grandparents—as well as children can suffer through loss of contact. That is why there have been calls for an automatic right of contact to be extended to grandparents.
I have a great deal of sympathy with the plight of grandparents who find that contact with their grandchildren is suddenly restricted or cut off. However, we must consider whether it would be in the best interests of the child if we were to legislate to give an automatic right of contact in all cases, without taking account of the views of the children and young people. However, wherever possible, I want to ensure continuity of relationships between children and their wider family, especially grandparents. We are not convinced that a legislative solution on its own would deliver that continuity, but we recognise the tremendous role that grandparents and other close relatives can have in a child's development. That is why we will actively seek views during the consultation from all interested parties on how best to promote continued contact between children and members of their wider family.
Earlier in the week I was interviewed by two young journalists from the Young Scot organisation, Scott McKay and Ian Christie. I was greatly impressed by their interest in a range of family law issues, not only those that affect young people directly. They reminded me that, uniquely in my portfolio, family law is relevant to everyone. Everybody belongs to a family and everybody can be affected when families break down.
I want Scotland to be a place in which "family" is a treasured word and concept that is supported by strong and modern legal frameworks. I want the law to protect the vulnerable and I want it to recognise that children are better protected when the adults around them are clear about their responsibilities and their rights. On the breakdown of relationships, I want the law to help rather than to hinder.
Some people might see any change to the law as an attack on traditional values, but they should not do so and I hope that they will not. The reforms that we propose are based around a principle that is central to everything that we stand for as a nation and as a society: the best interests of children.
I move,
That the Parliament agrees that family law reform must safeguard the best interests of children; believes that stability in families should be promoted and supported, and therefore supports the reform of family law so that it reflects the reality of families in Scotland today.
This is an important topic for debate; I agree that it is a subject on which there will be considerable consensus and common ground, but it is also an area of policy that urgently requires some decision and action. We all agree that consultation is a good thing; so, too, is trying to forge some sort of consensus on difficult and controversial issues. However, the consultation on those issues has been on-going for some time, since 1999. I hope that at the end of the latest consultation, at the end of the month, the Scottish Executive will move reasonably swiftly to make decisions and to take action as is necessary. While we talk, real families in real situations face real and difficult problems because family law, as it stands, does not recognise and cater for the realities of their lives.
I will focus first on where I agree with the Scottish Executive and with the thrust of the consultation document. I endorse totally the principles on which the review is based. In any discussion about family law, the interests of children must be paramount at all times. I believe fundamentally that the stability of families—whatever their shape or make-up—is what is important. That is especially important for children. The law cannot reflect society as some would like it to be; it must reflect the realities of modern life in order that all individuals are afforded protection when things go wrong in relationships, as inevitably they will.
I agree with the Executive on the areas in which firm proposals are being made. An unmarried father who jointly registers with the child's mother the birth of his child should automatically get parental rights and responsibilities. As has been said, rightly, many unmarried fathers assume that that is the case, even though it is not.
Nicola Sturgeon said that things inevitably go wrong at times in marriages and relationships. Does she think that by weakening the divorce laws we might create a situation in which those times of trouble simply become an excuse to get divorced?
I have some practical experience of divorce law. The time limits that are currently in place exacerbate the tensions and frictions within families and relationships that are going through the process of breakdown. That is why I support the proposals in the consultation paper, which I will come back to—in fact, I am right at that point in my speech.
I agree that the periods of separation that constitute the grounds for divorce should be reduced from five years to two years and from two years to one year, as appropriate. However, I make the point that I made a couple of weeks ago in the debate about the Civil Partnership Bill that is being considered at Westminster. That bill would retain the five-year and two-year periods of separation as the grounds for dissolving a civil partnership and it would be rather bizarre to create a situation in Scotland in which it would be easier to get divorced than it would be to dissolve a civil partnership. That issue has been touched on and perhaps the Scottish Executive will indicate how it intends to tidy up that anomaly.
I turn to legal protection for cohabiting couples. I make it absolutely clear that I think that marriage has, and should continue to have, a special place in society. After all, marriage remains the option that is chosen by most couples who want to make a long-term commitment to each other. However, respect for marriage does not, and should not, mean that other relationships are treated as less valid. Some people fear that giving legal rights and protection to people who choose to live together without being married would somehow undermine marriage, but I do not accept that that is the case. If the denial of protection to unmarried couples made such couples more likely to get married, we would not be witnessing the current trend for more and more people to choose to live together rather than get married, although that means that they will have no or few legal rights. The fact is that people choose the form of relationship that suits them best, regardless of what the law says. The law should not be the moral judge of people's choices. If we do not modernise the law to reflect the facts of life, people who choose not to marry but who are nevertheless in long-term, committed relationships will continue to find themselves in horrendous circumstances when things go wrong.
In the consultation paper, the Executive appears to be edging towards proposals that would represent an important step in the right direction. However, the rights that are proposed would be minimal rights that would mean, for example, that the onus would still be on someone whose partner had died to go to court to secure an interest in their late partner's estate. Those minimal rights might be enough for couples who deliberately choose not to have any formalities around their relationship, but many people choose not to get married for all sorts of personal reasons and not because they do not want their relationship to have some form of recognition. I cannot quite understand why it is acceptable for a gay couple, but not a heterosexual couple, to register a civil partnership. That could be explored further.
Family law is not a party-political issue. There are differences between and within parties. We will not treat the matter as a party-political issue, but we will put forward our views and ideas and we will discuss them with the Executive. I hope that our ideas will be considered in the spirit in which they are intended and that they will be treated constructively.
I move amendment S2M-1464.2, to insert at end:
"and ensures meaningful protection under the law, particularly in the event of separation or the death of one partner, for couples who have made the legitimate choice to live together without being married."
This is an important topic and I am sorry that it has been crushed into a very short debate. However, for better or for worse, we will try to contribute in that short time.
I reflect on the words "for better or for worse", which are synonymous with the commitment to marriage. I have never uttered them myself in that context, but they remain of interest and there is evidence that they promote and support stability in families. Indeed, the Executive motion says that
"stability in families should be promoted and supported",
but, interestingly, it does not mention marriage.
I listened to the positive comments that the minister made about marriage, which were echoed by Nicola Sturgeon, but I have a slight concern that marriage is not being promoted by Government as the fundamental and stable bastion that it is proving to be. That description of marriage is based on evidence. The recent Civitas study—"Experiments in Living: The Fatherless Family"—contained interesting though very distressing findings. It has been shown consistently that, sadly, many young people who do not live within the framework of a marriage seem to suffer more, do less well, and encounter problems that their counterparts within a two-partner framework do not seem to encounter. In making that comment, I am not being judgmental. Not for a moment am I suggesting that we demote, dismiss or discount other situations or relationships. That would be ridiculous. All that I am trying to say is that, when we consider the context of family law, it is important that the proven stability that is offered by marriage be acknowledged.
Does Miss Goldie agree that one reason for problems in the scenario that she describes could be the low status of unmarried fathers in the law? If we enshrine the status of unmarried fathers, the scenario that she describes could be improved.
I am just coming on to discuss such issues.
The consultation paper contains some sensible and useful proposals, and I want to make it crystal clear that I am in no way denigrating or disparaging those proposals. However, I am a little anxious that Government is not giving a lead. Government has to give a lead. The role of Government is not always simply to react to what is happening; sometimes Government has to say what seems sensible and good and what may be best for society. Sometimes Government should promote such things as best it can.
Will the member take an intervention?
I am so short of time that I really cannot take an intervention.
I feel that a role of Government is to acknowledge what works and what is good. However, I agree that—as the consultation paper suggests—Government must also make provision for other arrangements. As Nicola Sturgeon said, there are many situations in which it is important to make such arrangements.
Much in the consultation paper is positive. I want to pay particular attention to the issue of contact between children and their wider family. I am sure that I am not alone in having received distressing correspondence from grandparents who are estranged from their grandchildren. Such estrangements are a perplexing and sad part of society today. I have an enduring concern, but I was heartened to hear the minister say that she does not think that statutory or legislative intervention is necessarily best. I would have a deep apprehension about such intervention, because parents may, for very good reasons, decide what access by grandparents is appropriate or not appropriate. If we try to confer rights on grandparents—rights that are enforceable by law—we could get into extraordinary situations in which parents have refused to give access and grandparents have gone to law to seek to enforce their right of access. It does not take much imagination to envisage what the climate would then be like in those families. It would run counter to everything that we all seek to achieve.
In urging the Executive to recognise the value of marriage, we do not in any way seek to denigrate other proposals in the consultation paper. However, we feel unease about reductions to the period that is required for divorce on the ground of irretrievable breakdown. It could be argued that that weakens the institution of marriage and we are naturally concerned about that. However, we are prepared to wait for the responses to the consultation, and we are certainly prepared to listen to arguments.
I move amendment S2M-1464.1, to leave out from "and therefore" to end and insert:
"recognises that marriage has proved to be the most stable and viable framework within which to raise children, and therefore calls on the Scottish Executive, in considering any legislation, to ensure that marriage is not undermined by any such legislative changes."
We move to the open debate. I ask members to keep their speeches to within four minutes. I call Karen Whitefield, to be followed by Stewart Stevenson.
There is no doubt that the nature of the family in Scotland and, indeed, across Europe is changing. The figures in the research document "Family formation and dissolution" demonstrate clearly an increase in cohabitation, delayed parenting, lone parenthood and living alone. In addition, the number of marriages in Scotland has steadily decreased since 1951. It is clear that there are differing views about the impact that those trends have on society and about what is the ideal family.
I welcome the Scottish Executive's recognition of the important role of marriage in maintaining a stable family environment. Its consultation document states:
"The Executive is quite clear that marriage has a special place in society and that its distinctive legal status should be preserved."
However, I must say that I have many friends who have perfectly strong and loving families without being married. It is important that we acknowledge the value of other types of families, such as those involving lone or cohabiting parents. It is equally important that we offer proper protection to the members of those types of families.
Any law must be relevant to the circumstances of the time. It is clear that, at the moment, that is not the case with family law. For example, deficiencies in the laws pertaining to cohabiting families and matrimonial interdicts are causing genuine distress and, in some cases, abuse for many family members. It is especially important that the proposed family law bill places at its core the welfare of children. I am pleased that the consultation document details that as one of the key guiding principles, along with promoting and supporting family stability.
I welcome the proposal to introduce statutory parental rights and responsibilities for unmarried parents. For me, it is important that children are able to maintain loving relationships with both parents. As the law stands, when a relationship between unmarried parents breaks down and there is an acrimonious split, access disputes can be very damaging to the children concerned. Providing clear legal rights and responsibilities will help to reduce such disputes and alleviate the distress that is felt by children. I am aware that there have been calls for that measure to be retrospective, but I am not in favour of that, for the reasons that are outlined in the consultation document. However, I agree that efforts should be made to promote the use of parental responsibilities and parental rights agreements.
Another area of great debate is that of contact between children and the wider family. From our constituency case loads, I am sure that we all know of cases of grandparents whose desire to have access to their grandchildren has been thwarted following the separation of the parents. I have a great deal of sympathy with their position, as grandparents play an important and distinctive role in the development of children. However, the consultation document points out some quite serious problems that would be associated with the creation of contact rights for grandparents. Unfortunately, I do not have the time to go into the details of those problems, but I have been convinced that the creation of a right of contact for wider family members is not the best way of dealing with the matter. I accept that the separation of grandparents from their grandchildren is a difficult problem and I look forward to reading some of the comments that are made in response to the relevant section of the consultation document.
There is no doubt that family law in Scotland needs to be updated, nor is there any doubt that many of the issues that need to be addressed are complex and do not have easy or quick fixes. The Executive's consultation document provides a clear and relatively concise summary of the main points of debate, sets out a strong case for change and offers a clear vision for an improved family law system. I commend the Executive for its efforts to engage with the people of Scotland on the process of reforming family law and I encourage those people who have not yet participated in the consultation process to do so.
I must apologise to Margaret Smith for not having called her. You have four minutes. I thank Stewart Stevenson for his understanding.
I have my own views on family law, but I will not go into them at any great length.
The debate is important because, as has been said, it deals with issues that are important to every family in Scotland. I welcome the debate and the consultation, although I urge the Executive to try to move as swiftly as possible, because we have been waiting to deal with some of the issues for quite a long time. I appreciate that the Executive has a firm view on some of those matters and is seeking further guidance and, where possible, consensus on others. That is to be welcomed, but we must move forward as swiftly as possible.
I welcome the fact that the Scottish Executive's motion recognises that children's best interests should be the most important factor in reforming and modernising family law. We must do all that we can to support families and to foster stability for children, whatever their family circumstances. We must update the law to ensure that it reflects the reality of Scottish families, which come in all shapes and sizes. It is important that we signal that there should not be a hierarchy of family types, but that the things that children need from families—love, stability, respect, support and an adequate standard of living—can come from all types of family background.
We should not downplay the importance of marriage to individuals and society, but we must recognise that more than 40 per cent of children who are born in Scotland are born to unmarried couples and that more and more people raise children on their own or play an active part in bringing up stepchildren or grandchildren. We need legislation that supports all those people. However, there are no black-and-white solutions, which is why we should always be guided by the main principle of the Children (Scotland) Act 1995, which puts the best interests of children at its heart.
I welcome any efforts to reduce acrimony between parents who are on the point of divorce, which is why I strongly support the Executive's plan to reduce the non-cohabitation period that is required for divorce. To shackle people together for anything up to five years following a break-up is not only counterproductive but in some cases downright barbaric. It stops people getting on with their lives and throws couples into fault-based divorces, which are never in the best interests of children.
We must swiftly and seriously turn our attention to the discrepancies and unfairness that surround mixed-sex cohabiting couples, particularly given that more than 50 per cent of such couples have dependent children. We need to address three issues, all of which are raised in the consultation document. First, I welcome the Executive's plans to give parental rights and responsibilities to fathers on joint registration of a child's birth. It is important that fathers take their responsibilities seriously, but it is also important that society affords them their rights as parents. I agree totally with Annabel Goldie's points about the effects of a lack of a father's involvement in a child's life. The proposed changes would encourage more fathers to stay involved in their children's lives. The rights and responsibilities should not be attached to the decision to marry, but to the decision to become a parent.
Secondly, we must ensure that if a cohabiting relationship breaks up, the parties are treated fairly. I welcome the suggestion that legal safeguards should be provided that take into account property and goods that are acquired during a relationship, cases of financial hardship and the possibility of access to a share of a dead partner's estate, particularly when dependent children are involved.
Thirdly, we need to address urgently the misinformation about living together. The fact that 57 per cent of people believe that cohabiting couples have a common-law marriage that gives them the same rights as married people is incredibly worrying. Often, people find out that they do not have rights to property or access to children only at the point of break-up or death. That is not good for anybody. I understand the Executive's view that it does not want to give cohabitation the same legal status as marriage when the choices of civil and religious marriage exist, but I ask the minister in responding to the debate to make it clear what the key legal differences will be between cohabitation and marriage if the proposed legislation is enacted. I also ask him to clarify whether the greater safeguards that will be secured under the legislation for mixed-sex couples who cohabit will read across to same-sex cohabiting couples.
I urge the Executive to consider sympathetically the issue of grandparents, which many members have mentioned, and to help them to try to retain contact, unless that is undesirable for or detrimental to the child who is involved. Mediation services have a big part to play in that. In considering many of the issues, we should be mindful of article 12 of the UN Convention on the Rights of the Child. That applies to the issue of contact with grandparents and the wider family and to the issue of step-parents' rights, which I cannot discuss because I have run out of time.
Let us hope that the debate extends understanding throughout the chamber. I welcome the debate because we must safeguard the interests of children and promote family stability. It is time to reform family law so that it reflects the reality of many families in Scotland. Those are worthy principles with which no one could disagree.
The minister made some important points. She pointed to the need for services to be available to all families in distress. We will not resolve all the issues in this area of public policy simply by legislating. She touched on the fact that family counselling and mediation services are not well co-ordinated, on which I want to speak at some length. There are considerable gaps in the way in which we deal with such matters. Tomorrow we will debate at stage 3 the Antisocial Behaviour etc (Scotland) Bill. It is a widely held belief in the Parliament and beyond that better support for families at the earliest possible point when social distress becomes manifest is crucial to achieving stability in families—we will debate that subject further tomorrow.
I want to illustrate some of the issues by referring to a meeting that I had on Monday with a representative of the Family Mediation Scotland network in my constituency. Family Mediation is a voluntary organisation that is very much on the front line. One of the most important services that it provides is contact centres for families that have broken down, where parents who can no longer meet each other can remain in contact with children who would otherwise be disconnected from one or both of their parents. The contact service in Aberdeenshire and Moray is a successful service that has been running for approaching four years. However, it is a paradox that when we are saying that family mediation is a vital part of the infrastructure to support family values and families that are in considerable difficulties by taking the stress out of relationship breakdown, the centres in my constituency are virtually on the point of closure because of lack of funding. The minister might say, quite properly, that £0.25 million was provided recently to develop a better national infrastructure for family contact centres and family mediation generally. However, the reality is that that does not deliver services on the front line, which is where they are needed.
Child contact centres have no legal status and no definition in Scots law. Their development to date has been ad hoc, which the minister's opening remarks reflected. However, they support an important principle of Scots law and of the UN Convention on the Rights of the Child. The Executive's social research unit's report, "Building Bridges? Expectations and Experiences of Child Contact Centres in Scotland", notes that the service provided by
"Child Contact Centres … although not a formal part of the Scottish legal system … was widely regarded as critical".
Although the primary focus of the debate is on reforming the law, I hope that in summing up the debate the minister can give hope to child contact centres in my constituency and elsewhere that a lifeline is around the corner, because the corner is approaching very rapidly indeed.
In contributing to this debate I will concentrate on one aspect of family law only—the role and rights of grandparents. Presiding Officer, I am sure that you will find it almost impossible to believe that I have recently joined, rather proudly, the ranks of that esteemed sector of family structure and, as a grandparent, I probably ought to declare an interest.
I live in the serious hope of never being in the unfortunate circumstances of some of the surprisingly large number of my constituents who have contacted me about grandparents' rights. I accept that a blanket right to access for grandparents is probably not the right way forward, as it might create more difficulties than it solves. However, it seems to me that the current legal system too often biases the courts against grandparental contact on the somewhat spurious ground that as grandparents have no legal rights, it follows that they have no legal relevance. That attitude seems to infiltrate the mindset of social services, which seem too often to put grandparents at the back of the queue when children have to be taken into care, whether temporarily or otherwise.
Does the member think that another problem for grandparents and others who want access to the courts is the cost-prohibitive process? Does he agree that perhaps the system should be weighted more heavily in favour of mediation to determine to whom it is in the child's best interests to get access, regardless of whether that is the grandparent?
I agree with that comment 100 per cent. It is a good point and I thank Pauline McNeill for making it.
To illustrate the point that I am trying to make, I must refer to the case, which will not be unique by any means, of the maternal grandparents of a family in my constituency for whom the issue has been of enormous stress. Their daughter became addicted to drugs some years ago with all the dreadful consequences that that addiction brings, and her partner, who is not the father of her two children, clearly resents the children's presence. When he is in prison, as is all too often the case, the children's situation is manageable, but when he is at home, they are regularly abused and social services rightly have to intervene. That intervention usually ends up with the children being taken into care with a foster family, despite the fact that their maternal grandparents live only 6 miles away and despite the children's stated desire to be with them. For one reason or another, the daughter has stated in writing that her parents should not have access to her children, so whatever the private views of the courts or social services, access is denied. Individual social workers agree in this case that grandparental access could only be beneficial, but all that they are able to deliver is a recent promise that this year's birthday cards from the grandparents will be delivered to the children. Big deal.
Of course I understand that the minister cannot comment on individual cases—I would not dream of asking her to do so. However, I ask her to use that example as one that points to the fact that the current law needs to be amended to enable grandparents to play a greater role, where appropriate—I stress that phrase—not only in caring for their children's children but in helping to draw families back together to the ultimate benefit of all.
Occasionally, although not often enough, grandparents have managed to take on responsibility for their grandchildren under circumstances such as those that I have described. That makes it all the more disappointing to discover that in such instances financial help is all too often desperately hard to come by. As all parents know, bringing up children is not a cheap business, and that fact does not alter for grandparents. In fact, for the many grandparents who are dependent on their old-age pensions to survive, it becomes an enormous burden. It is patently diabolical that such grandparents receive virtually no assistance when we consider how much it costs the state—or rather, let us face it, the taxpayer—to keep a child in care.
In her opening speech, the minister spoke about the importance of continuity of contact with the wider family, and I was heartened by and appreciate those words. I simply plead that she not close the door on changing the current law on grandparental access, albeit in certain specific instances. A change would save an enormous amount of grandparental anguish and could save the taxpayer a great deal of money. Most important by far, it would be of untold benefit to hundreds, if not thousands, of unhappy children.
As any student of social policy who reviews the family law of the past 150 or so years can tell us, it has often lagged well behind the reality of society at any particular time. Therefore, I welcome the principles for reforming family law in Scotland and hope that the resultant legislation will not only safeguard and promote children's best interests, but ensure that the law is updated to reflect the reality of families as they currently are.
In the short time that is available to me, I will discuss three family law issues that have a significant impact on children and young people: parental rights and responsibilities for unmarried fathers; the legal position of step-parents; and contact between children and their wider family. I will start with the final issue.
In no way do I wish to denigrate the crucial role that the vast majority of grandparents play in their grandchildren's lives. However, this afternoon we are asked to consider whether grandparents should have an automatic right of contact with their grandchildren, and I am not convinced that such an automatic right can be given. We must take a variety of issues into account. Under section 11 of the Children (Scotland) Act 1995, any significant person can apply for a contact order, and grandparents certainly fall into the category of significant persons. I take on board Pauline McNeill's point that the cost may prevent grandparents from being able to go to court, but we should recognise the fact that the legal remedy exists to combat almost all the circumstances that Alex Fergusson outlined. Rather than give grandparents an automatic right of access, perhaps what we need to do is reform the way in which people access the legislation and use it to their and their grandchildren's advantage.
We must acknowledge the fact that a large number of families are reconstituted families that include step-parents. I am concerned that almost all the adoptions that are currently going through in Scotland are by step-parents, rather than it being a case of childless couples adopting children, as people would perhaps assume. We should be careful about that being the only way in which a step-parent can currently get full rights and responsibilities for a stepchild. I think that we need to find a further, third way of ensuring that step-parents and natural parents can retain shared rights and responsibilities, rather than one of the two requiring to get full rights and responsibilities, with the other being frozen out of the child's life.
I will move on to the position of unmarried fathers, which other members have mentioned. I think that, when the Children (Scotland) Bill was passing through Westminster, our legislators missed a golden opportunity to remedy the plight of unmarried fathers, which has been an issue for too long. As I was seeking to point out when I intervened during Annabel Goldie's speech, when full rights and responsibilities are not inherited, there is a tendency for the unmarried farther to drift out of his children's lives—even if he is named on the birth certificate—and not to take up the full responsibilities that we would hope he would take up. If we are to consider legislative changes, that would be an obvious anomaly to remedy quickly. As I said, the passage of the Children (Scotland) Bill was an opportunity lost, and I hope that any proposals that come out of the forthcoming consultation will remedy that situation.
In the area of family law, we often stress the concept of rights. I think that it is about time that we stressed responsibilities, which is the other part of the equation. Most of all, I would like to ensure that what we are trying to achieve is in the best interests of the child at all times and that we adapt our family law to take that fully into account.
I welcome the opportunity to participate in the debate and the fact that the motion is about promoting the best interests of children and reflecting the realities of today's family structures.
We all accept the need to reform family law, and we are broadly supportive of the aims of that initiative. There are a number of areas on which I would like to focus, starting with the position of unmarried fathers. We welcome the proposal for parental rights and responsibilities for all fathers who register the birth of their child jointly with the child's mother. However, clarification is required on the position of fathers who do not jointly register the child's birth, for whatever reason. I would argue that fathers who have no parental rights should benefit from retrospective legislation, particularly in cases in which the father's name is on the child's birth certificate. It is important that parental rights and responsibilities are equally shared by both parents, and such legislation would send a message acknowledging that those fathers have responsibilities.
Contact with the wider family plays an important role in the emotional development of the child. The Executive's intention to explore that area is to be welcomed. I am concerned, however, that the Executive does not consider a right of contact for grandparents to be appropriate, although I am aware that it is eager to seek all views on the matter. Like Alex Fergusson, I believe that the law needs to be amended.
Will the member give way?
I would like to carry on.
I would argue that grandparents play a crucial role in family life. Not only do they act as vital support for parents but, in many cases, they are carers, particularly when the children are affected by drug and alcohol abuse in the family. In cases in which grandparents do not have access, both grandparents and children lose out. That is often because of breakdowns in relationships—divorce or separation—or, sometimes, bereavement.
I have a friend who has never seen her grandchild because, tragically, her son died. She has no right whatever to see that child. She has tried to pursue the matter, but she does not have bottomless pockets or an elastic bank account, so to pursue it through the legal process has been impossible for her. Not only is she being deprived, but she would make a wonderful grandmother. The grandchild is also being deprived of his wider family and of an ability to know his roots and where he comes from, which I think is extremely important for children. I am a grandmother and would be devastated if I did not have the right to see my grandchildren—I cannot contemplate not having that right.
I am sympathetic to the grandparents who have lobbied me, and although I know that a right of contact might not be the correct way to go, we must carefully consider how we can make it easier for grandparents to maintain contact with their grandchildren. We should not underestimate what grandparents bring to a child's life—they provide stability, and the potential for children to learn from them is great. I understand that individuals have concerns about inappropriate contact, but dispute resolution procedures—and stronger measures, where they are necessary—could be used. The Executive's proposals to update the law on matrimonial interdicts and exclusion will protect children, and the issue could be addressed in a similar way. The grandparents' lobby is examining presumption of contact, which we must consider. I hope that we will come up with a legal remedy that will not be impossible to access because of the cost.
It is always a challenge to deal with a sensitive subject such as family law. There are two issues today: first, the set of words in the minister's motion and the amendments to it; and secondly the substantive point. The form of words that is used in the motion will be interpreted by people in the chamber in particular ways, which might be unfortunate.
I am disappointed that the Conservatives, in their amendment, chose to delete the last part of the Administration's motion, although I am broadly in sympathy with Annabel Goldie's amendment because I think that it is important to address marriage, both in the debate as a whole and in the words that are used today. I am glad that we are dealing with the matter in a non-party-political way, and I am grateful for the view that Nicola Sturgeon expressed along those lines.
It is important to address marriage. It is incumbent on us as politicians not just to address the realities of family life in Scotland today but to offer some leadership. It is true to say that many people choose not to get involved in marriage and I do not wish to deny anybody the opportunity to do that. The key question was asked by Margaret Smith: what is the difference, in the Executive's eyes, between people who choose to live together and people who are married? If, in the eyes of the law, there is no advantage in being married, what is the point of marriage, other than as a religious sacrament which, these days, is important for only a minority of people? I would like the minister to spell out the answer for us. If she is not able to do so today, I hope that she will do so at some length when we debate the proposed bill.
Marriage tends to give greater stability in relationships, particularly for children, and the evidence supports that. Situations in which people cohabit have been in existence for some time; cohabitation is not a new phenomenon, although it might be a growing phenomenon. However, the evidence supports the idea that marriage leads to greater stability in family relationships. It is no guarantee of success—there is no guarantee at all in relation to these things—but marriage is something that we should cherish and as politicians we have a responsibility to encourage it. In my view, we also have a responsibility to make it worth while. During the past five years, I have seen a steady erosion of that approach. Relationships have been sexualised and genuine attempts that have been made by those who wish to redress obvious inequalities have been rubbished on that basis—we are addressing a sexual agenda, not a relationship agenda. I regret that. I hope that the minister will spell out today or at some point the differences in her view between civil partnership, marriage, cohabitation and any other form of relationship, so that we and the public know exactly the advantages and disadvantages of each arrangement.
I declare an interest in that I am a director of Ross-shire Women's Aid and have been a member of that organisation for about 20 years. I support the motion and the thrust of the Executive's plans to support stable families, but I will speak about how the proposed family law bill might affect women who are escaping domestic abuse.
I note that the Executive wishes to update the Matrimonial Homes (Family Protection) (Scotland) Act 1981 to widen its application. The act, which is more than 20 years old, was groundbreaking in its day. It gave abused women the right to occupy the matrimonial home by virtue of being the abuser's spouse and provided for the granting of an interdict with powers of arrest—a matrimonial interdict—to keep the abuser away from the matrimonial home.
I welcome the proposal to extend the matrimonial interdict to cover places of work and anywhere that a woman might be found in her day-to-day life, but in practice, that already happens at the sheriff's discretion. I believe that a man was once banned from the entire town of Saltcoats because he abused his wife. Nevertheless, it will be useful to have clarified in law the right to have matrimonial interdicts that give women wraparound protection.
The proposal in the consultation document to extend the 1981 act to protect cohabitees from abuse through what will be called domestic interdicts gives me a sense of déjà vu. I do not know exactly what the Executive has in mind. I am concerned that although the introduction to the document mentions the Protection from Abuse (Scotland) Act 2001, the rest of the document does not mention that act or the fact that a power of arrest can now be attached to a non-harassment order. That legislation was passed in the Parliament's first session, which makes me wonder whether Executive officials have examined the proposals to protect cohabitees in the past four years, because the proposals are identical to those that the Parliament discussed when it considered the Protection from Abuse (Scotland) Bill.
The 1981 and 2001 acts protect cohabitees but do not give them rights to the home that they share with the abuser or to share in any worldly goods. The evidence that the Justice 1 Committee took in the previous session suggests that legislation to provide such rights would be extremely complicated and difficult to enact. Has the Executive read the evidence that was given to the Justice 1 Committee on that point? We certainly floundered on the definition in law of a cohabitee when the status of a cohabitee gives rights to a home or to a partner's estate. Gordon Jackson, who was a member of the committee, shot holes through every definition that we came up with. I note that the Executive proposes to let the courts decide case by case, but I am a bit sceptical about that and I would like more discussion with the Executive on the proposal. I do not know what the Executive has in mind to give cohabitees more rights to protection from abuse or more legal protection than they have under the 1981 and 2001 acts and I do not know how domestic interdicts would differ from interdicts under the 2001 act.
The document proposes that parental rights and responsibilities should be granted to unmarried fathers if they register themselves as parents following the birth of their children. I note that that can happen only with a mother's consent, but I ask the Executive what safeguards will be put in place to assess the effect on children of fathers exercising their rights if a mother leaves a father because of abuse or violence towards her. I realise that that also has relevance for married fathers who abuse their wives.
The minister emphasises in the motion that the best interests of the child must be considered. A father may abuse a mother but not directly abuse a child. However, the minister must be aware of recent research that shows the damaging effect of abuse of the mother on her children. A woman who leaves an abusive relationship is often in greater danger because her partner becomes even more determined to exert control and can use access to children as a means of gaining access to her and thus continuing his controlling behaviour. I therefore urge the minister to ensure that the proposed legislation contains a section that makes it necessary, when a relationship ends because of domestic abuse, to treat the effect of that abuse on the children and the mother with the utmost seriousness and to take it into account before the father is permitted to exercise his parental rights over the children.
The debate and the consultation are welcome. Like other members, I urge the department to ensure that the recommendations resulting from the consultation are urgently put into effect. [Interruption.] I am sorry for coughing—I do not usually seize up like this before members in the chamber.
It is important to put the matter in a social and historical perspective. The lawyers among us who did Roman law have a vague recollection of there being various sorts of marriage in Roman law—some permanent and some breakable—and a special form of lesser relationship for slaves.
They were men, of course.
That is absolutely right. My ancestors probably were slaves.
In the middle ages, there was a similar context in Scots law, which, of course, had irregular forms of marriage. Ultimately those forms were taken over by the church, which wanted to have control over such matters because it did not like having such things happening outwith its control, and eventually regular marriage became the thing. However, in Scots law, marriage was originally a matter of a simple declaration before witnesses without any form of legal sanction beyond that. That survives only in the arrangement of marriage by cohabitation with habit and repute, which results from long-term relationships in which people presume themselves to be husband and wife.
We must put matters in context and it is important to view the importance that we give to marriage in society against that background. Marriage has a special position.
I suggest that the way to approach some of the practical issues that we are discussing is through the idea of a supportive framework, whether it involves grandparents, step-parents or whoever. We do not want lots of people having to rush off to the courts every second day to identify and preserve their rights. We want the law to give reasonable guidance to people so that we have sensible relationships and agreements as a matter of practice, as many people currently have in the divorce situations that arise when marriages break down. Stewart Stevenson talked about couple counselling, marriage guidance, contact centres and so on, all of which are worth investing in and supporting.
I share the view that Annabel Goldie and other members have expressed about the undesirability of having a right of contact for grandparents. I am certain that that is not the right way to go. There needs to be a reasonably clear framework of relationships, within which the immediate family has rights but other people can step in in certain situations.
Perhaps it would be helpful to distinguish two situations involving grandparents. In one situation, the natural parent is out of the picture to some degree, for whatever reason—drug abuse, for example. In the other, the parents are in play and have an objection to the grandparents exercising contact. We should perhaps view those situations slightly differently.
Bearing in mind the chronic shortage of foster parents in Scotland, I believe that it is extremely important that we give as much practical support as we possibly can to grandparent relations, but not through that particular legal channel. Would there be merit in having protocols to state how things ought to work in an ideal situation? I do not mean something legal; I mean guidance that would perhaps have some effect with the courts, social workers and others.
My final point is about cohabitees. A central issue is support for the breakdown of cohabiting relationships. I do not think that there is any doubt about the difference in the consultation paper. The document lays out clearly the fact that we are trying to provide last-resort support for cohabitation, but it is important that we do that. I suggest that we go a little further than talking about just a share in household effects, because often, particularly in longer-standing relationships, one party has the title to the house and pays the mortgage and the other party pays the household bills. If the relationship ends, the person with the house will walk away with the vast bulk of the assets, which may have been built up over five, six or seven years. That is unjust and unfair and must be dealt with.
We should deal with such matters and move forward. The paper is very good and is a basis for modernising family law into the 21st century in a satisfactory way. The debate has been helpful in achieving that aim.
Today, members are again being asked to debate an important issue before the consultation on the subject has been completed. Two consequences flow from that. First, the debate is not fully informed. Secondly—and more worrying—the Scottish Executive is left wide open to the charge that the consultation process that it has embarked on, and to which it seems sincerely wedded, is not being given the importance that it deserves and could be described as mere window dressing. That is unacceptable.
The motion states that
"the Parliament agrees that family law reform must safeguard the best interests of children".
That is agreed. It also states that
"stability in families should be promoted and supported".
That is also agreed. It then goes on to state that the Parliament
"supports the reform of family law so that it reflects the reality of families in Scotland today."
Several members support that proposition, but I do not believe that it is logical. In answer to Brian Adam's question about why we want to remove that part of the motion, I suggest that it implies that any trend in society is necessarily good and should be supported. That is why we lodged our amendment.
I always thought that it was the Tory philosophy not to dictate to people how they should live their lives. Has that changed? Do the Tories now want to be the moral judges of people's lifestyle choices?
That is ironic. Nicola Sturgeon recognises the fact that people have choice, yet her amendment would give cohabitees legal rights that they have perhaps chosen not to take up by entering a civil partnership. There is something flawed in her argument.
Our amendment recognises and backs up the view that marriage is the most stable environment in which to raise children. It is worth looking at the Marriage (Scotland) Act 1977, which suggests that a framework for those conditions is Christian, heterosexual and monogamous. There are some modifications, as it recognises civil marriage. I would be interested to hear the minister define the difference between civil partnership for heterosexual couples and civil marriage. Those terms are bandied around and seem to me to be the same thing, but I would welcome the minister's clarification.
It is also worth looking at the Civitas research to which Annabel Goldie referred, which clearly states that children fare better if their two parents are in a stable relationship. The research goes on to state that it has been established that parental divorce increases by 50 per cent children's rate of developing health problems. As the minister pointed out, that is not to say that, when there is an irretrievable breakdown in, say, a violent relationship, separation and divorce are not the best course of action. However, I welcome Stewart Stevenson's suggestion that, when that breakdown occurs, mediation could be considered.
Many other issues have been raised during the debate and the consultation process. Some of those involve fathers' access and grandparents' rights, which were mentioned by Rosemary Byrne, Alex Fergusson and Robert Brown. They are certainly worthy of wider consideration in recognition of the fact that there are potential benefits of wider family support. However, we want to avoid at all costs seeking to impose measures that undermine marriage or—worse still—result in marriage becoming, in effect, a conditional contract. On that basis, I urge members to support the Conservative amendment.
Like most members who have spoken this afternoon, I welcome the debate. It has been relatively positive, as there is little in the way of party politics on the issues, although there are some personal differences of opinion that should be fully respected.
When Scott Barrie talked about students of social policy, I remembered when I was a student of social policy being taught about the various family structures. The history of families shows us that their structures have continually evolved. Over the past 20 to 30 years, that evolution has moved on considerably; therefore, it is important that our family law system recognises the changes that have taken place in family structures in today's society. In particular, it is important to ensure that we protect the interests of children in many family situations.
Nicola Sturgeon was correct to point out that couples will choose to have the type of relationship that best suits their needs. It would be wrong for us to ignore that when we legislate on family law in Scotland. However, I respect fully the concerns that have been expressed about the effect that the proposed changes may have on the standing of marriage in society. I believe that marriage is the best environment in which to bring up children and that it should have a special standing in our society. Having said that, I am not convinced that the proposed changes will necessarily undermine the institution of marriage in the way in which some suggest. I suspect that 10 years after the family law reform has occurred we will find that the statistics show that the trend in the number of people getting married is largely the same as it is today. I do not believe that many people get married purely to obtain the legal benefits associated with it.
There are some issues that members have raised this afternoon that must be addressed. I refer especially to the proposal to speed up the process of divorce for couples. Some members have expressed concern that that could lead to an increase in the number of couples who choose to get divorced. In reality, couples whose relationships have broken down to the point that they are seeking a divorce do not worry about whether they will be able to divorce in a year, two years, four years or five years—they have decided to get divorced because their relationship cannot be continued. It is only proper that that is recognised and that the process is reviewed. Hopefully, speeding up the divorce process will address some of the concerns about child care matters that can arise when couples divorce.
I hope that the Executive will consider being more positive in supporting marriage. In a number of American states, there are courses to assist couples to prepare for marriage, provided by a range of agencies to which couples are referred. In states in which such programmes have been implemented, the couples who participate in them have broadly welcomed them. Such couples are less likely to divorce at a later stage. Another unintended benefit of the programmes is that they identify people who are involved in abusive relationships and enable them to be counselled out of getting married for the time being. I hope that the Executive will consider providing support to programmes to assist couples who are getting married as well as married couples who may be experiencing difficulties and who need assistance to work through their problems. That would help to address some of the concerns that exist about the proposal to speed up timescales for divorce.
Although members have referred to a range of legal provisions that might be made by a new piece of family law legislation, the key aspect of all provisions must be protection of the interests of children in relationships. We must ensure that we anchor at the heart of our family law the best interests of children. If we can do that, we will have made progress towards providing new, updated family law in Scotland.
I am grateful to all members who have contributed to this short debate. I agree that the subject is worthy of a much longer debate. Not only were some thoughtful and telling speeches made, but there are clearly significant issues that it would be worth our teasing out in more detail.
Margaret Mitchell's criticism of the decision to have the debate was a little bizarre. I say to her that we have already spoken to and consulted a huge range of organisations. The debate is simply part of the process of ensuring that people in the chamber and beyond are aware of what we propose to do, so that the consultation can be as wide and thorough as possible. I hope that the consultation will be telling.
Does the minister accept that, as parliamentary debating time is at a premium, it follows that it would be much more logical and effective to have this debate against a background of members being informed of the various views that have been expressed in the consultation? That is self-evident.
We will have the opportunity to have that very debate when the consultation is finished and when we introduce the bill. If members from all parties firmly believe that having the opportunity to have a debate such as the one that we have had today is not fruitful and should be stopped, we will listen to them. I think that it is more productive to have such debates, because they allow us to reflect on some of the comments that are made so that we can then include them in the legislative process, rather than having to react at a later date. However, we will be guided by Parliament if it takes the view that I described.
Far too many points have been made today for me to take up in the available time. If members want clarification on individual points, they should write to the Minister for Justice or to me and we will attempt to clear up any matters.
When Annabel Goldie told us in her contribution that the form of words associated with marriage was not one that she had used, I thought that she was busy preparing her curriculum vitae for a situations vacant column—I thought that we were going to hear much more than we did.
Brian Adam and Margaret Mitchell asked for further clarification on the differences between civil partnerships, cohabitation and marriage. As we make progress, we will try to clear up some of those points. If members would find it helpful, I will ask officials to provide details in diagrammatic form and to ensure that they are anatomically correct so that the members can understand exactly the differences of which we speak.
Maureen Macmillan raised some pertinent issues about domestic violence and she asked for more discussion of the subject, which is definitely worthy of more consideration. We are committed to tackling domestic abuse and we will consider the evidence, as requested, to ensure that what we do is right. I hope that Maureen Macmillan and others will have the opportunity to get involved.
I hope that Nicola Sturgeon took the points that the minister made in all sincerity—that there is no great difference in emphasis in the Executive motion and the SNP amendment. It is important that the Parliament unites around a reform that reflects the significant status of marriage in our society and that recognises that there are many people in our society who, for whatever reason, choose not to get married, but who still need legal rights in their relationship and in relation to their children.
I return to the point made not only by the minister, but by others throughout the debate. Whatever we do in this Parliament in relation to family law, it must be with the best interests of children in mind. Children's best interests must be the cornerstone of family law reform in Scotland and we have a responsibility to put their needs first. That will be an important concept when we come to the thorny issue of grandparents' rights, which a number of members raised—we recognise that powerful and emotional argument. Equally, in responding to some of the powerful and emotional needs of grandparents, we cannot damage the interests of children. I concur with Annabel Goldie that we need to be cautious in how we proceed on the matter.
Although the debate has been short, it has been useful, and I look forward to introducing legislative proposals that will make a huge difference to children in Scotland.