Tidying up Scottish family law

Enormous hopes are being pinned on devolution, in general, and the Scottish Parliament, in particular.  One criticism of Westminster was that Scottish legislation had to vie with other concerns for parliamentary time, with the result that excellent proposals for reform languished, unimplemented, for years.  Whatever the political rhetoric surrounding the importance of the family, it was often felt that Scottish child and family law fared particularly badly in this setting.  Thanks largely to the work of the Scottish Law Commission, there was never a shortage of coherent, well-researched reform proposals, conveniently presented along with draft legislation.

Virtually all child and family law matters are now devolved to the Scottish Parliament1.  In preparation for legislative action on this front, the Scottish Office Home Department published a consultation paper, Improving Scottish Family Law, in March of this year2.  Due to the lapse of time since the Scottish Law Commission completed consultation on many of its proposals, this document repeats many of the Commission’s recommendations on such matters as the position of unmarried fathers, extending the recognition of heterosexual cohabitation, the abolition of marriage by cohabitation with habit and repute, and judicial separation and divorce reform, and asks for contemporary views.  However, it does contain new material, most notably on the role of step-parents, mediation and the division of matrimonial property on divorce.

At present, Scots law discriminates against the children of unmarried parents and unmarried fathers3.  All mothers and married fathers gain automatic parental responsibilities and parental rights a soon as their child is born4.  An unmarried father only acquires such responsibilities and rights by agreement with the child’s mother5, or by order of the court6.  The Commission had recommended that the concept of “illegitimacy” should be abolished along with all of its consequences7.  Sadly, that eminently sensible proposal was rejected in the Children (Scotland) Act and, arguably, Scots law was left in breach of the United Nations Convention on the Rights of the Child8.

Improving Scottish Family Law raises the issue again and asks whether the law should acquire responsibilities and rights by registering the child’s birth jointly with the mother, or whether all parents should acquire parental responsibilities and rights automatically (question 14). It also asks whether the whole concept of illegitimacy should be abolished (question 14A).  If some reform measure is favoured, consequential questions are posed on the matter of when the reform should take effect; what, if any, protection is required against rapist fathers and others who might pose a danger to the child or the mother; what the practical consequences might be of changing the way in which parental responsibilities and rights are acquired; and new rules for determining a child’s domicile (questions 15-17).

Many children live in step-families but, at present, the only way for a step-parent to acquire full legal recognition of the important role he or she may be playing in the child’s life is through adoption9 or by applying to the court for parental responsibilities and parental rights10.  Adoption has the drawback of terminating the child’s legal relationship with the birth parent who is not part of the new family group and an application to the court is a fairly time-consuming and expensive process.  Improving Scottish Family Law seeks views on whether the more user-friendly mechanism of agreement between the step-parent and the child’s birth parents, should be introduced for step-parents (question 18).  It should be noted that both birth parents would be required to agree, something which might reduce the number of such agreements.  Nonetheless, the proposal would create a simple and inexpensive way of recognising the role played by many step-parents, while retaining the child’s link with both birth parents.

Under the previous legislation, the court had to be satisfied about the arrangements proposed for any children involved before granting decree of divorce11.  Consistent with the principle of presumed non-intervention12, the court’s obligation is now to consider whether it should make any order in respect of children.  There is no obligation to provide it with information13 and practice appears to vary in terms of what information the court is given.  Views are invited on the need for a standardised provision (question 2).

The Commission’s modest proposals to give a little more recognition to heterosexual cohabitation by providing for a presumption of equal shares in household goods, the possibility of very limited financial provision on the termination of the relationship, and a discretionary power for the court to order financial provision from the estate of a deceased partner, are repeated and views are invited (question 9).  At a time when many other jurisdictions are according increased recognition to cohabitation, and extending recognition to same-sex relationships through the mechanism of the registered partnership, the proposals here look very tame but, then, if may be that Scotland is not yet ready to take the more radical options on board.

Improving Scottish Family Law addresses the problem of domestic violence from two perspectives.  First, it repeats the Scottish Law Commission’s recommendations to amend the Matrimonial Homes (Family Protection) (Scotland) Act 1981 in respect of third party dealings, prescription of occupancy rights after two years non-occupation by the non-entitled spouse, extension of the locations which may be covered by matrimonial interdicts, powers of arrest attaching to such interdicts, and the possibility of extending them to cover other family members (questions 5-8 and 9).  However, the idea that the Protection from Harassment Act 1997 may mean that there is now less need to extend the scope of matrimonial interdicts is also brought into the debate (question 4).  In the light of the serious limitations on the practical effect of that Act, it is to be hoped that it is not seen as a reason to reject or limit any of the Commission’s proposals.  Domestic violence continues to be a massive problem and we need as broad a range of measures as possible if it is to be eradicated.

Secondly, Improving Scottish Family Law examines the thorny issue of the abusive partner who is also a non-abusive parent of the couple’s child14.  Take, for example, a man who has been violent towards his wife but is a loving father to their child.  Arguably, of course, exposing a child to domestic violence, or its after-effects on the victim, is hardly the behaviour of a loving parent.  That point aside, the wife may, very reasonably wish to have nothing further to do with her husband. However, he may want to retain contact with the child as a means of continuing to persecute and control his victim.  The use of contact centres or other third party intermediaries might provide a solution in some cases, but the consultation paper is conscious that there may be a need for further changes in legislation or practice so that the issue of domestic violence is addressed squarely when contact is being considered by a court (questions 19-21).

The issue which attracted most media attention was, predictably enough, reform of the grounds of divorce15.  The greatest concern is that spouses are driven to raise actions of divorce based on fault grounds and, particularly, behaviour, because the periods of non-cohabitation, currently two years (with consent) and five years (without consent)16, are too long.  Improving Scottish Family Law offers three options, one of which is the Commission’s proposal to reduce the periods of non-cohabitation to one year and two years, respectively, with the consequent abolition of desertion as a ground of divorce17.  The other options are either to do nothing, or to “devise for Scotland more radical reform on the lines of that to be introduced in England and Wales” (question 1).

Given the unpopularity of the changes made to divorce law south of the border, one hopes that respondents will give overwhelming support to the Commission’s proposals.  There is a worrying indication that the “more radical” option may have some support at the Scottish Office.  Question 3 asks, “Should there be a new statutory basis for funding family mediation and marriage support services?”.

Taken in isolation, that is a bit like asking members of the clergy what they think of sin.  Of course most family lawyers would support more funding for mediation and marriage support service if, indeed, that is what would result, but is there a price?

Mention is made of Access to Justice, Beyond the Year 2000:  A Consultation Paper on Civil Legal Aid18 which raised the spectre of that great oxymoron “compulsory mediation”, at least where legal aid is to be provided.  If better funding for mediation and marriage support services means less civil legal aid being provided for matrimonial cases, it is unlikely that the profession would welcome any such change.

The Family Law (Scotland) Act 1985 contains the regime for the division of matrimonial property on divorce and it is fair to say that the Act has worked well in offering guiding principles and arming the courts with a broad range of orders designed to ensure their implementation.

The fundamental problem here is that two households are ore expensive to run that one and, often, the pie is simply not big enough, however it is cut.

Improving Scottish Family Law addresses two outstanding issues that have given rise to apparent injustice in particular cases.  The first concerns the fact that property is valued at the “relevant date” (i.e. the date of separation or service of the divorce summons, whichever is earlier19) and the problem is exemplified by Wallis v Wallis20, a case which generated considerable academic debate21.  There, the couple co-owned a house which increased in value very substantially between separation and the case being heard.  The husband sought an order transferring his wife’s share of the home to him.  The Inner House and the House of Lords rejected the Sheriff’s solution in granting the order, and making an adjustment of capital payable to the wife to take account of the increase in value, since valuation was tied to the date of separation.  Effectively, the husband reaped the benefit of the increase in value22.  One solution, which the courts arrived at eventually, lies in refusing to transfer the property and granting an incidental order for division and sale instead, thus enabling both spouses to share in the increase in value.

This might not suit a spouse, like Mr Wallis, who wanted to remain in the home.  However, if threatened with sale, such an individual would then have had every incentive to negotiate a fair price for the transfer.  Improving Scottish Family Law explores whether other options, like valuing property to be transferred at current market value, would provide a better solution (question 22).  The second issue considered is whether greater account should be taken of increases in the value of non-matrimonial property and views are invited (question 23).

It is to be hoped that Improving Scottish Family Law simply represents a plan to resolve outstanding issues in child and family law as a prelude to developing the comprehensive Child and Family Code, recommended by the Scottish Law Commission in 199223.  If this is the intention, the statement in Improving Scottish Family Law that “Public law aspects of child welfare such as child protection and the children’s hearing system are not considered part of Family Law”24 is less than encouraging.  It has been suggested that this is a misprint and that the sentence should read:  “Public law aspects of child welfare such as child protection and the children’s hearing system are now considered part of Family Law”.

Certainly, that would make more sense.  Nowhere is the private law/public law divide more inappropriate than in child and family law and the way ahead requires recognition of the need for a coherent, integrated approach.

1. There are exceptions here and, for example, the provision of state benefits will continue to be determined from Westminster. Abortion, unlike most other health matters, will not be devolved to the Scottish Parliament and, arguably, the real reason for the UK Parliament retaining control of abortion lies in the strength of the anti-abortion lobby in parts of Scotland and a desire to avoid the unseemly prospect of a trail of pregnant women heading over the border to England in pursuit of terminations.
2. Copies of the consultation paper can be obtained free of charge by telephoning 0131 244 2206 and is also available on the Internet at www.scotland.gov.uk
   
3. For a discussion of the background to, and injustice of, this, see E.E. Sutherland, Child and Family Law (T & T Clark, 1999) paras 5.44-5.52.
   
4. Children (Scotland) Act 1995, section 3(1).
   
5. Children (Scotland) Act 1995, section 4, discussed in E.E. Sutherland, Child and Family Law, above in paras 5.53-5.66.
   
6. Children (Scotland) Act 1995, section 11, discussed in E.E. Sutherland, Child and Family Law, above, at paras 5.68-5.136.
   
7. Report on Family Law, above, recommendation 88.
   
8. Article 2 of the Convention prohibits discrimination founded on the child’s or the parents’ sex, birth or other status.  Article 18 recognises the principle that both parents have “common responsibilities for the upbringing and development of the child”. Cf. Brixey v Lynas 1996 S.L.T. 908, per Lord Jauncey, at p.911.
   
9. Adoption (Scotland) Act 1978, section 15(1)(aa), added by the Children (Scotland) Act 1995, section 97.
   
10.  Children (Scotland) Act, section 11.
    
11. Matrimonial Proceedings (Children) Act 1958, section 8 (repealed).
    
12. Children (Scotland) Act 1995, section 11(7)(a).
    
13. Children (Scotland) Act 1995, section 12.
    
14. New Zealand’s Domestic Violence Act 1995 introduced a rebuttable presumption that a parent who had been violent to his or her partner or a child should not be permitted to have unsupervised access to the child unless the court was satisfied that the child would be safe with the violent parent.  It also widened the definition of domestic violence to include same-sex relationships and violence towards members of the extended family.  For a discussion of the background to, and content of, the New Zealand legislation see R. Busch and N. Robertson, “Innovative Approaches to Child Custody and Domestic Violence in New Zealand:  the Effects of Law Reform on the Discourses of Battering” in P. Jaffe (ed), Children Exposed to Domestic Violence (Sage, 1998).  See also, M. Hester and L Radford, Domestic Violence  in child contact arrangements in England and Denmark (The Policy Press, 1996).
    
15. While the Divorce (Scotland) Act 1976, section 1, provides that irretrievable breakdown is the sole ground of divorce, it can only be established where at least one of five sets of circumstances is present.  For this reason, the factual circumstances themselves have become known almost universally, as the “grounds of divorce”.
    
16. Divorce (Scotland) Act 1976, section 1(2)(d) and (e).
    
17. Report on the Grounds of Divorce (Scot. Law Com. No. 116, 1989).
    
18. The Scottish Office Home Department, 1998.
    
19. Family Law (Scotland) Act 1985, section 10(3).
    
20. 1992 S.L.T. 676 (IH), 1993 S.L.T. 1348 (H of L).
    
21. E.M. Clive, Financial Provision on Divorce 1992 SLT (News) 241; J.M. Thomson, Financial Provision on Divorce:  Not Technique but Statutory Interpretation 1992 SLT (News) 247.  See also, A. Bissett-Johnson and J.M. Thomson, Sharing Property in a Fluctuating Market 1994 SLT (News) 248.
    
22. Jacques v Jacques 1995 S.L.T. 963 (IH), 1997 S.L.T. 459 (HL).
    
23. Report on Family Law, para 1.1 and Part XIX.  The passing reference to such a Code in paragraph 4.6.24, in the context of choice of law rules, is encouraging.
    
24. At para 1.1