Family law is under review

The Scottish Government’s consultation on family law, a document of potentially great significance to Scottish children and their parents, was published last week. It received surprisingly little coverage in the Scottish media.

In this blog post SPICe explains the background to the consultation and gives a flavour of the task ahead for the Scottish Government in reforming the law.

The policy background

When parents separate or divorce, difficult disputes can arise about the arrangements for the future care of the children concerned.

For example, should the children live with one or both parents? If the children are to live with one parent, what arrangements will be made for the other parent to have contact with his or her children?

Some couples successfully reach agreement themselves, some need the help of solicitors or mediators. In the most acrimonious of cases, disputes end up being settled in court.

This area of law and practice is a popular topic in SPICe’s postbag as far as constituency enquiries are concerned. It is also a very sensitive policy area, given the potential for prolonged acrimony between parents to have a detrimental impact on the children concerned.

The legislation

It is the Children (Scotland) Act 1995 which solicitors, other advisers and the courts look to when helping parents resolve disputes. It sets out a range of parental responsibilities and rights (PRRs) in respect of children living in Scotland.

The 1995 Act was truly ground breaking in its day. The amendments to it contained in the Family Law (Scotland) Act 2006 were also a significant milestone. They strengthened the rights of unmarried fathers. They also emphasised the impact of domestic abuse on the abuser’s ability to parent.

Growing pressure for reform

However, in recent years there have been growing signs that further, more fundamental, reforms to the law and practice may be necessary.

For one thing, there have been several high profile court cases where senior judges have criticised aspects of the current system. Delay in the court system is one theme which has been touched upon. Appropriate sanctions where court orders are breached are another.

The Parliament has also seen a steady stream of petitions being considered by the Public Petitions Committee. For example, one high-profile petition focused attention on child contact centres. These are used by the courts but largely run by third sector organisations.

Towards the end of the last parliamentary session the then Justice Committee upped the pressure for further reforms. It carried out a short, but high profile, inquiry into the 2006 Act. The Committee concluded:

Overall, the way in which the Scottish legal system handles family law cases involving children raises strong and conflicting views. With the main legislation over 20 years old, we note views that it may be time for a wholesale review, focused as much on how the law is applied, and the mechanism used to resolve disputes, as on what the law says. We consider that cases would benefit from increased use of mediation and, if necessary, from being heard by specialist family law sheriffs.”

The Scottish Government’s consultation

The new Scottish Government consultation document gives thorough coverage to a wide range of topics.

Thornier policy issues facing the Government include:

  • whether to introduce a legal presumption (or starting point for the courts) that a child benefits from both parents being involved in their life. This idea is known as shared parenting. It has particular implications in domestic abuse cases
  • how to ensure the voice of the child is effectively heard in any parenting dispute
  • how to resolve paternity disputes where a mother will not give consent to DNA testing for the child
  • the appropriate sanctions where a parent breaches a court order.

For a fuller discussion of the topics covered, see the Scottish Government’s press release.

Challenges ahead

Family law and practice is a notoriously difficult area to reform, particularly where there is a minority government. The policy issues raised are emotive and the subject matter less technical than many other aspects of civil law. This means the electorate can more readily engage with a family law project.

This brings the possibility of strong and conflicting views, which the then Justice Committee referred to in 2016. This is an issue not just for ordinary people who might respond to a government consultation but for interest groups too.

A case in point is one reform of the 1995 Act by the 2006 Act. Here an explicit requirement on the courts to consider the impact of domestic abuse when reaching decisions was added to the 1995 Act.

During the 2016 committee inquiry, Families Need Fathers Scotland said some mothers are using the new statutory formulation to thwart contact in cases where fathers are innocent of any abuse.

On the other hand, Scottish Women’s Aid argued that the specific reform had not achieved the effect intended. This means women are still at risk from abusers in cases heard under the 1995 Act.

The dynamics between the different interest groups are likely to remain challenging during the Government’s review. This is particularly so because topics like mediation and shared parenting are on the agenda. This may make the progress of the project slower than hoped for.

The family law consultation is open for responses until 7 August 2018.

Sarah Harvie-Clark, Senior Researcher, Civil Law