Family Law
In March last year, my colleague, Henry McLeish, issued a consultation paper called "Improving Scottish Family Law". I can announce today how we propose to take those matters forward. I will be following up this statement with a white paper in May, which will explain our conclusions in more detail and set out issues on which we are still seeking views.
The consultation document, "Improving Scottish Family Law", was based on reports by the Scottish Law Commission, which were themselves the result of consultation processes. Therefore, most of the issues on which we consulted were not new. We have received a wide-ranging and encouraging response, for which we are grateful. I am placing copies of the responses in the information centre today. The responses have been considered carefully.
On most issues there was wide consensus. However, on some issues, particularly the questions of the grounds for divorce and parental rights and responsibilities for unmarried fathers, there was a range of opinion. That is not surprising. Those are emotive issues, which is why our white paper will invite further views on some matters.
Our starting point is one of support for the family. Families today take diverse forms. However, we believe that the family provides the best setting for the care and upbringing of children. The welfare of children is crucial for the future of our society. Social exclusion often goes with family breakdown and all the stresses and strains associated with it, including fragmented relationships, poverty, homelessness and unemployment. Children's welfare can suffer. In this important area of social policy—family law— we want to ensure that any changes that we make promote the welfare of families and, in particular, children.
We support marriage as the most recognisable and widely accepted way of signalling to society a couple's commitment to each other and to their life together as parents. However, we must also take account of the fact that many couples choose not to marry but to live together in stable relationships in which they bring up children. Any changes in family law must take account of that.
We recognise the reality that families break up, whether or not the parents are married. It is not the role of the Executive or of this Parliament to be judgmental about marital breakdown; our role is to adopt the policies and legislation that minimise the damage to families and, in particular, to children.
Against that background, we have made the following proposals, the first of which concerns grounds for divorce. When marriages break down, we must ensure that the divorce process is handled with as much dignity and as little pain as possible. There is considerable evidence that acrimony between parents is damaging to children.
We agree with the Scottish Law Commission that the existing periods of separation are too long. That may lead to couples taking the more acrimonious route to divorce by using the unreasonable behaviour ground in order to get a quicker divorce. Most responses to our consultation agreed that change was needed. We therefore propose to shorten the period required to establish breakdown of marriage from two years to one year if both parties consent, and from five years to two years without consent.
At this time, we do not propose any change to the fault grounds—adultery, desertion and unreasonable behaviour. However, consultees were divided on the value of such grounds, and we do not rule out further change, particularly the replacement of the three grounds with a single unreasonable behaviour ground. We have an open mind and will be seeking further views on that point.
Almost 40 per cent of children are now born to unmarried parents. Many unmarried fathers do not realise that they have no parental rights and responsibilities. There is a procedure for an unmarried father to obtain parental rights and responsibilities, but it is not well understood and it is little used. We believe that change is needed to enable unmarried fathers to obtain parental rights and responsibilities more easily from the time of the birth of the child.
Provisionally, we think that the best way forward is that—from the commencement of the new legislation—parental responsibilities and rights should be conferred automatically on all fathers who have registered the birth of the child jointly with the mother. For those who have jointly registered in the past, parental responsibilities and rights would take effect from the date on which the implementing legislation is commenced. From that date, existing unmarried fathers would be entitled to consent to, or enter into discussions on, decisions on education, medical treatment, adoption, children's hearings and other matters.
Inevitably, some will think that that does not go far enough. For instance, some would want automatic rights and responsibilities for the father, whether or not he is registered as such. Others might consider that the proposals already go too
far and that there should be some greater hurdle to ensure that a woman who has just had a baby is not put under undue pressure to register the birth jointly with a father whom she considers unsuitable.
We are anxious to strike the proper balance between those views. We think that our proposals would do that, bearing in mind that it would still be open to the courts to grant parental responsibilities and rights to, or take them away from, anyone. The courts' paramount consideration in all such matters would, of course, be the best interests of the child.
However, we are interested in gathering further views on this difficult subject. Our white paper will set out the proposals, the possible alternative courses of action and their implications, and will invite further views.
We will also introduce measures to enable step-parents to obtain parental responsibilities and rights by registering an agreement with both natural parents. Although many step-parents form close ties with their new family, they currently have to go to court to prove that it is in the children's best interest that they should have parental responsibilities and rights. The proposed new agreement would need the signature of the other parent as well. Indeed, one of the merits of this scheme is that the absent parent can retain parental responsibilities and rights and stay involved with the children. It will be important in such a scheme for the views of the children that are to be affected by it to be taken into account by the parents and step-parents. That is an element of our proposals that we will work up along with interested organisations such as Stepfamily Scotland.
Any changes that we make in family law must be designed to ease the transitions that some families undergo as a result of breakdown, and in particular to minimise the damaging effects on children. An important role is played by organisations such as Couple Counselling Scotland, Family Mediation Scotland and Stepfamily Scotland in providing services to families in transition.
We propose to set up a new statutory grant scheme to support those organisations and others like them. We already provide about £500,000 a year and we hope that, by focusing the new grant scheme on those and similar organisations, we will achieve better targeting of the money that we already give. As a first step, the administration of the existing section 10 grants to these organisations will pass to the justice department from April.
To avoid doubt, I should also add that we have no proposals to make mediation compulsory for those undergoing divorce. The present arrangements whereby mediation may be undertaken voluntarily and the court may refer a couple for mediation at any time in the divorce process under a rule of court will remain in place.
An important aspect of the Scottish Law Commission's work was its recommendations to strengthen the legal protection available to victims of domestic abuse. Matrimonial interdicts will be extended to former spouses and cohabitants; we propose that they be renamed "domestic interdicts". They will be extended to last for up to three years and will not fall when a divorce is granted. Furthermore, they will be able to cover more than just the immediate home; they will be able to protect vulnerable people at their workplace or at their children's schools.
Members have rightly been concerned that people who have been threatened by, or consider themselves under threat from, their spouses or cohabitees should get the protection that they need and deserve. Both the Parliament and the Justice and Home Affairs Committee signalled their interest in this at an early stage.
Our proposals will improve protection to members of families disrupted by abuse. By the time that our white paper appears, we will have had the benefit of the conclusions of the Scottish Partnership on Domestic Abuse, which we will examine carefully to see whether anything more needs to be done.
There will be many other technical improvements to various aspects of family law to make it fairer in its operation to, for example, cohabitants when relationships break down. We hope that the resulting family legislation will be easy to understand and will meet the needs and expectations of the people of Scotland. The details will follow in our white paper and we look forward to the debate on them.
Before concluding, I will mention three other points. First, the Scottish Law Commission recommended the abolition of the old Scottish law of marriage by cohabitation with habit and repute—common-law marriage. However, the responses to the consultation have persuaded us to retain that measure in the meantime. Secondly, in response to comments by faith groups, we consider that judicial separation should be retained. Thirdly, we propose to end the status of illegitimacy in Scotland. The children of unmarried parents have long had equal rights in almost all respects, and it is right and proper that the status of illegitimacy should now be removed from the statute book.
I am proud to be able to announce the Executive's way forward on the wide range of issues that will affect Scottish families in the years
to come. The publication of our white paper will promote further public debate on some of those issues. The proposals that I have outlined will require primary legislation in due course and they will be introduced when parliamentary time permits.
There will now be questions to the minister. I call Roseanna Cunningham.
I should preface my question by referring back to the minister's comments on my point of order. Despite those comments, The Scotsman's report on today's statement extensively quotes the special adviser, Mr David Whitton, on some of the specific proposals. Furthermore, at least two other journalists yesterday had chapter and verse on the detail of this morning's announcement. Although the actual bits of paper that we have been handed this morning may not have been given to journalists, I can assure the minister that the detail was handed to journalists early yesterday, and I stand by my point of order.
The SNP is in broad support of the proposals on the specific issues raised by the statement. The reduction of time limits for divorce is welcome and the extension of parental rights to unmarried fathers rights another inequality in the system. I am sure that family support organisations will welcome the provisions for funding that will be put in place. Nevertheless, I am concerned about the time scale for the proposals, especially for the introduction of the new domestic interdicts.
I welcome the recognition that the work of the Justice and Home Affairs Committee is encouraging the Executive to move faster on some issues that might otherwise have been left behind. However, the issue of legal aid is not addressed anywhere in the paper. The provision of legal remedies on paper is one thing—it is particularly important in the case of domestic interdicts—but the ability to afford access to those remedies is another thing entirely. According to present information, many people, especially women, are denied access to legal remedies because they cannot afford to take them up; they must refuse the offers that the Scottish Legal Aid Board makes them. What does the minister intend to do to ensure that the new remedies are available not just on paper, but in fact, to the people who would most gain from them?
I thank Ms Cunningham for her general welcome and broad support for the proposals that I have announced.
On the time scale, I indicated my hope that the white paper would be published in May of this year. Thereafter, having raised expectations, we will want to proceed to legislation. However, I cannot anticipate the legislative programme for the next parliamentary year.
Moreover, as I am sure Ms Cunningham will be the first to admit, the justice department and the Justice and Home Affairs Committee have a substantial work load, regardless of whether the specific measure on domestic violence to which she refers is dealt with in a separate bill or in a family law bill. Clearly, we will consider the timing in due course in co-ordination with the committee.
I take Ms Cunningham's point about legal aid, which is as relevant to the law as it stands as it would be to any of the proposed changes that I have announced today. The matter was raised when I met the Scottish Legal Aid Board. I am not in a position today to indicate any changes to legal aid, but my department, the Scottish Legal Aid Board and I are well aware of the issue and will continue to address it.
On behalf of the Scottish Conservatives, I give a cautious welcome to the minister's statement and a particular welcome to the fact that there will be a white paper later in the year, as well as further consultation on some of the more contentious issues to which he referred.
The statement raises some profound issues about the role of marriage and the family in society and, in particular, about the role that the Government should play in devising a framework of laws that actively promotes those institutions. If the minister subscribes to the view, as my colleagues and I most certainly do, that Government should actively promote those institutions, does not he think that his comment that it is
"not the role of the Executive or of this Parliament to be judgmental about marital breakdown" is regrettable? Frankly, I believe that we should be judgmental about marital breakdown. The high incidence of divorce and marital breakdown in this country is profoundly damaging and exacts a heavy toll in human and financial terms on members of our society.
Given that this issue is more than just a matter of civil law and has implications for wider policy areas, will the minister undertake to discuss it in the joint ministerial committee—which I note has been established between the Scottish Executive and the Westminster Government—particularly in relation to child poverty? I am sure that the minister will acknowledge that marital breakdown is a factor in child poverty in many households. We must have—to use the fashionable phrase— joined-up thinking on the subject.
Although most people will welcome the reduction in the period for divorce without consent
from five years to two, we must consider the time scale for divorces with consent—currently two years—to see whether the proposed reduction is justified in the circumstances. We must not get into a situation where our laws encourage quickie divorces that trivialise marriage and turn it into a conditional contract, terminable at short notice, rather than a commitment that people should solemnly enter into with the undertaking that it be for the duration of their lives.
Call me old-fashioned, but will the minister agree that the surest way to improve the rights of unmarried fathers is for them to marry the mothers, preferably before they conceive the children? That is what the responsibility of parenthood, in marriage, is about. By extending the interdicts as proposed—this is why I think that we need further consultation—we may, paradoxically, encourage parental irresponsibility with people not undertaking the commitment of parenthood within the institution of marriage.
Finally, will the minister—
Mr Rumbles, there can be no interventions. This is meant to be a question.
I have asked four questions, and I am about to ask a fifth.
I have a point of order.
I beg your pardon.
On a point of order. I know that it is appropriate to ask to intervene during a member's speech, but is this a question or a speech?
It is a series of questions.
It is a series of well-informed questions, to which I am sure the minister will give a comprehensive reply. I recommend that we listen both to the questions and to the answers so that we become better informed.
I draw the minister's attention to a report on his statement. The report appears on the BBC Scotland web page and says:
"Possibly the most contentious reform will be that which will provide increased recognition for gay couples.
The legal acknowledgement that such relationships exist and the extension of some legal protection will form part of the reforms."
That matter was not in the minister's statement to Parliament this morning, and I would be grateful if he could clarify the Executive's position on that issue, as reported.
I am grateful to Mr McLetchie for his welcome—albeit cautious—to the Executive's proposals on behalf of his party. He invites me to say that the Executive, and indeed the Parliament, should be judgmental on marital breakdown. I do not know what kind of practice Mr McLetchie had when he was a solicitor but, when I was an advocate in the days when divorces were dealt with in the Court of Session, I saw many cases of marital breakdown. I do not think that it is appropriate to pass judgment on what happens in relationships in such cases.
I think that Mr McLetchie would agree that, whenever relationships break down, for whatever cause, that leads to human suffering and tragedy. Breakdown is a tragic event in people's lives and he is right to say—as I did in my statement—that it can often lead to social exclusion, perhaps to poverty. I do not think that that is a matter that will necessarily be discussed in the joint ministerial committee, although I hear what Mr McLetchie is saying. It is recognised that breakdowns can be a contributory factor to poverty and deprivation.
The fact that breakdown and divorce can lead to so much unhappiness is why a willingness and incentive to take as much acrimony out of divorce proceedings as possible underlies the Executive's proposals, although I doubt that divorce proceedings will ever be easy for those involved.
The quickie divorce is not about a reduction from five years to two, or two years to one. It concerns a person who might have to wait five years for a divorce and so chooses other grounds for that divorce, such as unreasonable behaviour. Acrimony in divorce proceedings is often the result of behaviour, rather than of separation. As I said, there is plenty of evidence that such cases can have an adverse effect on children—we make these proposals to address that issue.
As I said in my statement, we believe that the family established by marriage is the most secure unit in which to bring up children, but we must take account of reality. Parliament would be putting its head in the sand if it did not recognise the fact that almost 40 per cent of children in Scotland today are born to unmarried parents. In such situations, it is to be welcomed that many fathers want not only the rights but the responsibilities of parenthood. We want to ensure that the rights and responsibilities are available to unmarried fathers without their having to use the very cumbersome current arrangements.
I said nothing about same-sex partnerships in my statement because that subject does not form part of these proposals. Press speculation is not always right. When the Law Commission issued its report on family law, it indicated that it had received representations on that issue, but it did not address it. It was not addressed in the
consultation document on which this reform of family law is based, so these proposals contain no changes in the legal status of same-sex couples.
I welcome the introduction of domestic rather than matrimonial interdicts but ask the Minister for Justice to address in his white paper the financial barriers to obtaining such interdicts. I also ask him to explain what is wrong with the new procedures on the rights and responsibilities for unmarried fathers that he and I were involved in introducing only five years ago in the Children (Scotland) Act 1995.
As I said to Ms Cunningham, we will have to address the financial arrangements for domestic interdicts. On the existing arrangements for paternal rights and responsibilities, it is my recollection of the debate in committee—in which Lord James Douglas-Hamilton and, if I remember rightly, Ms Cunningham took part—that there was a lot of dissatisfaction with the way in which the law was left at that time. From my own constituency postbag and from meetings with constituents, I know that to invite unmarried couples to register their agreement in the books of council and session is not an everyday or realistic arrangement; there are also fees attached to that.
I, too, welcome the statement. Is the Minister for Justice proposing legislation for the autumn, with the summer to review the white paper? Does he envisage a power of arrest being attached to the new domestic interdict?
As I said to Ms Cunningham, we will have to discuss timing—it would not be right for me to anticipate the legislative programme when the Executive has not yet considered it. However, the end product of a white paper is legislation and, as I said in my statement, we will legislate when parliamentary time permits.
With the domestic interdict, we are trying to extend protection for those who are vulnerable. It is almost arbitrary that protection ends at the time of divorce, when there can be a continuing threat. We wish to extend that protection beyond divorce for a period of three years and to extend the number of places where it applies. The white paper will flesh out the detail of the power of arrest, but we must ensure that protection is effective and readily accessible to those who need it.
I, too, welcome the minister's comments and the general outline of his statement. I am sure that members were impressed by Mr McLetchie's speech—I do not know whether to call it the Cecil Parkinson speech, the Jeffrey Archer speech or the Steve Norris speech. In any event, it was illuminating.
Does the idea of making divorce quicker and easier have anything to do with the forthcoming discussions about the Cubie report?
Nothing whatever.
Is the minister aware of any submissions from the Jewish community in Scotland on improving Scottish family law? Is he further aware of the widespread agreement throughout that community that divorce law needs to be changed because it affects the rights of women, particularly in the Jewish community? Will the Executive promise to listen to those views?
Responses were received from the Jewish community. One of the questions that was asked in the white paper related to religious marriages. Last night—at a reception that was hosted by the moderator of the General Assembly of the Church of Scotland—I talked to representatives of the Jewish community, who said that they wanted to make further representations to me on that point, which I encouraged them to do. This issue is one of the more detailed aspects in the family law reform consultation document and it will be addressed in the white paper that will be presented in May.
As one who practised family law for 12 years, I broadly welcome the proposals. I also welcome the fact that the cooling-off period is not to be included in the proposal to speed up divorces, as there is an obligation on lawyers to establish whether there is a chance of reconciliation.
The minister mentioned couples who cohabit by habit and repute. Will he say whether division of property between cohabiting couples will be examined? At the moment, that issue is covered only by normal property rules. Will he also examine the role of grandparents, who can often play a positive and healing role in cases of matrimonial breakdown?
Those are aspects of the consultation on which the Executive has not yet finalised its views. Those views will flow from the questions that were asked in the consultation paper. I do not remember that grandparents were included in the consultation, but those are matters that will be addressed in greater detail when the white paper is published.
I welcome the statement, but I would like Mr Wallace to consider a number of things before legislation is introduced. Financial support for couple counselling is extremely varied throughout Scotland and the prevention of breakdown of marriages is of considerable importance. Will he talk to the Minister for Health and Community Care
about focusing primary care counselling on relationship support and about ensuring that primary care counsellors are adequately trained to provide that support? Will he also examine family mediation services, some of which—particularly in central Scotland—are having considerable financial difficulties?
I am grateful for Dr Simpson's comments. As I said, the Executive recognises that organisations such as Couple Counselling Scotland, Stepfamily Scotland and Family Mediation Scotland play an important role in society. That is why we are setting up a new statutory grants scheme to ensure that the resources that we are able to channel to such groups are better targeted. Those organisations will then be better placed for providing what we all recognise are valuable services. We will have to discuss those matters with the organisations, but we intend that their role be better recognised.
I will draw to Susan Deacon's attention Dr Simpson's comments on the primary health care sector and the need to address many issues relating to relationship breakdown.
Taking into account the best interests of the child, what is the minister's policy on gay couples adopting children?
I am aware that the courts have dealt with such matters but, as I said to Mr McLetchie, they are not the subject of this reform of family law, which flows from a consultation document. Our intention is to progress the results of the consultation exercise, which did not address that issue.
I want to press the minister on Christine Grahame's point about cohabitees and property rights. Does the minister accept that such rights are, in a way, the counterbalance to the proposed increase in rights of access to children and that, with the increasing number of cohabitees, there is increasing urgency for greater remedies in law than currently exist? Will he undertake to take these comments on board, if not in the white paper, then in the consultation procedure that will follow?
As I said, those points are not the subject matter of today's statement. I have heard what Mr Brown and Ms Grahame said and I undertake to address their points in the light of the comments made in the chamber today.
I, too, welcome the minister's statement. I wish to touch on the issue of mediation services, which was raised by Richard Simpson. Will the minister confirm that the figure to which he referred constitutes an increase in funding for mediation services in Scotland, which have an important role in protecting the rights of children of divorcing couples? Will he also ensure that the new grants system and the targeting of grants will not result in larger grants being provided to one area of service to the detriment of another?
Does the minister have any plans to examine the court reporter system in order to see whether it can be improved? That is another important service that protects the needs and rights of children.
I mentioned the sum of £500,000 a year, which is provided at present; I was not announcing an increase in funding. Although we would all like to see more money, the financial realities are such that I am not in a position today to promise it. As I suggested both in my statement and in response to Dr Simpson's question, by making these changes and by setting up a new statutory grant scheme, we may be able to target resources better and make more effective use of the money that is currently provided. I take Mr Matheson's point that it would be almost counterproductive to our objective if one organisation or one geographical area benefited while others were left less well off as a result. That is the opposite of our intention, which is to ensure that, with better focusing, the money that is spent brings far more effective and productive returns. Finally, I will certainly consider the court reporter system.