Improving Family Law in Scotland: Analysis of Written Consultation Responses

IMPROVING FAMILY LAW IN SCOTLAND: ANALYSIS OF WRITTEN CONSULTATION RESPONSES

EXECUTIVE SUMMARY

1. A Scottish Executive Justice Department consultation on Improving Family Law in Scotland took place between 5 April 2004 and 28 June 2004. A consultation paper was issued to which 304 responses were received from a wide range of individual and organisations with an interest in improving family law.

2. The written consultation exercise was supported by other consultative mechanisms including a series of focus groups held around Scotland and special events hosted by Scottish Civic Forum at which the consultation topics were discussed. The Scottish Executive consultation team also undertook consultative work with Young Scot and other key stakeholders.

3. This report presents an analysis of the responses to the written consultation. The findings will inform the development of proposed changes to the law to include in the forthcoming Family Law Bill.

4. The response to the consultation was encouraging in terms of the participation of a wide range of respondents representing both professional and lay views. The consultation topics touched upon issues of which many respondents had first-hand experience and the views of many reflected very strong emotions attached to this experience. No obvious gap in respondent category was identified.

5. The consultation document highlighted specific issues on which views were particularly invited. These were:

Legal safeguards for cohabiting couples
Parental responsibilities and rights relating to stepparents
Right of contact for grandparents and other wider family members
Making the law work in practice

6. Consultees were also given the opportunity to provide commentary on the firm proposals which the Executive plans to include in a future Family Law Bill. The major provisions are:

Conferring parental responsibilities and rights on unmarried fathers who jointly register the birth of their child with the mother
Reducing periods of non-cohabitation required to constitute grounds for divorce from 2 years to 1 year with consent and 5 years to 2 years without consent

OVERVIEW

7. Overall, the responses to the consultation provided a broad mix of views from moral, personal, idealist, legal and pragmatic perspectives. A quantitative summary of overall responses is provided for reference:

PROPOSAL	% IN FAVOUR
Legal protection for cohabiting couples	47%
Legal safeguards rather than comprehensive package of Responsibilities and Rights like marriage	69%
Presumption of equal shares to goods/money/property acquired during cohabitation	60%
Former cohabitee right to apply to court for financial provision where suffered undue financial hardship	61%
On death of one party to cohabiting partnership, surviving cohabitee should be able to apply to court for provision from estate left	68%
Legal safeguards should be for people who live together as a couple	75%
Stepparent Parental Responsibilities and Rights Agreement should be introduced	58%
Should not be right of contact to child for grandparents and other wider family members	59%

NB Quantification of responses provided in the consultation should be treated as indicative rather than precise. It should also be noted that any statistics quoted here cannot be extrapolated to a wider population outwith the consultation population.

8. These figures indicate that although in most cases the majority view supported the consultation proposals, the balance in favour tended to be small, with a substantial body of opposition associated with many of the proposals. Detailed findings drawn from responses are documented below. However, a number of overarching themes which cut across the various discussion topics could be identified and are addressed briefly here.

Overall, the current court system was viewed as inappropriate to deal with Family Law

9. Emerging throughout the responses was criticism of the current court system on a wide range of accounts. In particular, it was seen as inappropriately adversarial, costly, tardy and old fashioned for dealing with family law situations. Courts were perceived as intimidating for children caught up in family disputes and sometimes a catalyst in increasing conflicts or complicating matters which had originally presented more simply. Court orders were frequently viewed as unenforceable with voluntary arrangements for contact with children seen as usually more sustainable.

10. The recommendation for the introduction of dedicated Family Courts was made by many, with some respondents urging that appropriate aspects of the Children's Hearing System be incorporated into a new court approach to family law. Proposed Family Courts were envisaged as being less formal, less confrontational and with the child's interests at heart.

Need for greater public awareness of Family Law issues

11. Another recurring theme was the need for people to be much more aware of Family Law issues particularly in relation to responsibilities and rights and the law as it applies to cohabitants. Better public awareness was seen as one way to address to the lack of retrospective application of the proposed legal changes, to enable people to make informed choices to take action if they so wish. It was interesting to note the significant engagement of respondents with the consultation topic on what to cover in future information campaigns and how to disseminate the information. Many of the ideas appeared to be based around taking detailed aspects of the law out of a legal context and into the everyday consciousness of ordinary people using, for example, sports centres, car repair waiting rooms and nurseries as outlets for legal information.

The law should be more child-focused

12. Although many respondents welcomed the "guiding principle" for the family law framework as safeguarding the best interests of the child, some thought that the consultation proposals could go even further to this end. For example, the proposals for Parental Responsibilities and Rights (PRRs) for unmarried fathers and Stepparent Responsibility and Rights Agreements (SPPRRAs) were considered by some as beneficial in helping to strengthen the bonds between fathers/stepparents and children, but others were concerned that the consultation did not include safeguards for the child in the event of any abuse of such rights by adults.

13. Again, whilst most supported SPPRRAs, many questioned where the views of children would fit, and in particular, how they would apply in cases where they contradicted those of the relevant adults in the situation. It was interesting to note the views of many that relatively young children could be helped to provide a measured view on their preferences and should be included in the decision making.

Marriage is worth promoting and supporting

14. The consultation drew much attention from respondents who strongly supported marriage. A general theme to emerge was the requirement for greater efforts to be put into preparing for, supporting and working at marriage. Such views manifested themselves in the strong opposition to what many referred to as the proposals to "fast track" divorce. Many proposed greater funding support to be provided for agencies seeking to reconcile troubled marriages with much commentary referring to the perceived disadvantages to children arising from their parents' divorce.

Family Law should be kept as simple as possible

15. It was argued that such law should be readily understood by ordinary people many of whom represent themselves in divorce courts. Current straightforward aspects of law were appreciated and calls were made for the maintenance of legal precision and clarity wherever possible. For example, the main reason for opposing the proposal to permit a cohabitee the right to apply to court for provision out of their deceased partner's estate was that this would introduce a lack of clarity of rights over succession. In a similar vein, the introduction of SPPRRAs was questioned by some because of the potential complexity of involving several adults with responsibilities and rights over one child. Again, in the case of the discussion on the introduction of a right of contact for grandparents and other family members, much of the opposition was framed around the likely effect this might have of complicating a child's life.

16. Family Law was seen as having relevance to everyone, as highly significant and important and thus needing to be clear, precise and, if possible, consolidated across the different legislative acts in which it currently resides.

DETAILED FINDINGS

Views on the Firm Proposals for the Family Law Bill ( Chapter 4)

Despite these provisions being presented as "firm proposals", they attracted amongst the largest volume of response out of all of the topics highlighted in the consultation

Conferring PRRs on Unmarried Fathers who Jointly Register their Child's Birth

The significant majority view was in favour of the proposals for PRRs for unmarried fathers
The requirement for the father to always be present at registration of the birth was considered by some to be potentially problematic for logistical reasons
The majority view was for PRRs to be awarded prospectively as opposed to retrospectively
A recurring theme was the perceived need to make people aware of the change in provisions relating to PRRs for unmarried fathers
A commonly raised concern was to ensure that women and children were protected from inappropriate contact with abusive fathers holding PRRs

Reducing the Periods of Non-Cohabitation required to Constitute Grounds for Divorce

Views were mixed on proposals for reducing the non-cohabitation periods required for divorce with most individual respondents against this plan and most responses from organisations expressing support
The 3 main reasons which emerged in opposition to plans to reduce non-cohabitation periods required for divorce were that numbers of divorces might increase, couples would have less time to rethink and seek reconciliation and that the proposals belittled the seriousness of marriage
Reasons to support the reduction in time periods included helping to lessen the occurrence of acrimonious divorces, the likely reduction in "fault" divorces, lessening the financial burden on divorcing couples, and providing a cleaner break which permitted parties to move on

Other Firm Proposals

Other firm proposals relating to updating the law on matrimonial interdicts and exclusion orders attracted relatively little comment and gained general support

Legal Rights for Cohabitants ( Chapter 5)

Cohabiting couples to have legal protection?

Of the 232 responses containing a clear view, 47% supported the proposal
A recurring theme was that legal protection of cohabiting couples should not be instigated until couples had cohabited for a set period
Legal safeguards were seen as needed in order to protect the vulnerable
Difficulties were envisaged in establishing the start and end dates of cohabitation
A common recommendation was that the proposals should apply equally to same sex couples
Main reasons in opposition to the proposal were that this would undermine marriage, discourage people from marrying, with the option always there for cohabitees to marry if they wish to have safeguards

Proposal to create legal safeguards rather than a comprehensive package of responsibilities and rights like marriage

Of the 124 responses containing a clear view, 69% supported the proposal
There was a general view that a comprehensive package of responsibilities and rights was not appropriate for the state of cohabitation and would not be expected by cohabitees

Proposal that there should be a presumption of equal shares to household goods and money/property from housekeeping acquired during the period of cohabitation

Of the 147 responses containing a clear view, 60% were in favour of the proposal
One recurring view was that equal shares appeared to be a fair approach to each party and provided financial security especially where there were children involved
Respondents called for cohabitees to have the right to appeal against the presumption of equal shares in certain circumstances
However, some respondents considered that such a system of equal shares could be open to abuse and lead to disputes in courts and increased legal aid costs

Proposal that a former cohabitee should have the right to apply to the court for financial provision where they have suffered undue financial hardship on the termination of their cohabitation agreement

Of the 143 responses containing a clear view, 61% were in favour of the proposal
Many respondents stressed that court is the best setting in which to address these issues which were important in cases involving children
Some respondents considered the proposal, as drafted, to be relatively vague and lacking in detail
A common view was that "undue" hardship might be too high a standard
Respondents urged that much discretion be left to the courts in this regard
Opposing views included the arguments that there are already other legal options available to cohabitees and that this proposal portrays the message that marriage does not matter

Proposal that on the death of one party to a cohabiting partnership, the surviving cohabitee should be able to apply to the court for provision out of the deceased's estate

Of the 147 responses containing a clear view, 68% were in favour of the proposal
Some respondents considered that an application should be permitted only in the absence of a will and where it was known that the deceased wanted this
There was a concern about how these rights would interact with existing legal rights and testamentary provisions
Many of those opposing the proposal were concerned about introducing a discretionary element into what was at present seen as legal clarity, and possible unfairness against the spouses of cohabitees and others who inherit under existing succession rules

Proposal that legal safeguards should be for people who live together as a couple

This question caused confusion, and although 75% of those who provided a view appeared to support the proposal, this figure should be treated with caution
Respondents called for greater effort to be put into defining terminology such as "couple" and "friendship"
It was argued that there were different expectations between different types of couples regarding safeguards and that some couples such as those not sharing a sexual relationship did not expect these

Any other points?

Respondents called for a greater public awareness of the rights of cohabitants
Respondents called for marriage to be promoted over cohabitation
Respondents called for the application of safeguards to same-sex cohabiting couples

Parental Responsibilities and Rights: Stepparents ( Chapter 6)

Agree that provision to create SPPRRAs should be introduced?

Of the 153 responses containing a clear view, 58% supported the provision to create SPPRRAs
A recurring theme was that this would reduce the need to instigate costly and complex court proceedings
The proposal was seen as contributing to the enhancement of the role of the stepparent, was a practical step and could strengthen the relationship between stepparent and stepchild
However, concern was expressed that the proposal did not detail how the child's views will be taken into account
There was also concern that introducing SPPRRAs could pave the way for complications in permitting too may adults to have responsibilities and rights over one child
A call was made for the introduction of a mechanism to enable SPPRRAs to be revoked under certain circumstances

Child's views factored in?

Many respondents commented that children's views should be systematically factored into SPPRRAs as soon as they are judged mature and competent enough
There were diverging views on whether a child should provide their view in the presence or absence of their parents and other family members
At one extreme was the view that parents should be left to ascertain children's views. At the other was the opinion that these matters should be dealt with only by the courts

Improvements to make court less daunting for stepparents securing PRRs?

The most common response was that a "Family" or "Children's Court" be established to handle such cases
Such a court was seen as having a less formal atmosphere, less adversarial in nature, be more accessible and encounter no undue delays or deferments. It was recommended that they operate in a fashion more akin to that of the Children's Hearing System
A minority view was that court should not be made less daunting in view of the seriousness of the issues under consideration

The Law in Context: Right of Contact for Grandparents and Wider Family ( Chapter 7)

Agree that a right of contact to a child is not appropriate for grandparents and other wider family members?

Of the 160 responses expressing a view, 59% were in favour of the proposition
The valuable role which grandparents could play in their grandchildren's lives was acknowledged by many although they did not agree that grandparents should have a right of contact
Arguments against an automatic right of contact included the concern that once rights were available they might be taken up by wider family members and others and thus create the situation of having to divide up the child's time between many relatives
Other concerns were that this created rights without responsibilities, could be open to abuse, with parents the best people to decide on contact with the child
Many respondents considered that the current court option to seek contact was sufficient
However, others argued that a child should have the right to have access to and knowledge of their grandparents and wider family and that granting rights of contact over them would be in their best interest
The court option was viewed as too costly and tardy for grandparents seeking contact

How best for the Executive to promote continued contact between children and wider family where voluntary agreements prove elusive?

Some respondents considered that the Executive could not or should not intervene in promoting contact
A recurring view was that the Government should not intervene directly but should promote the voluntary and other services which can provide more specialised help
Calls were made for Family Mediation to be better publicised
A less intrusive form of promotion was suggested as using media campaigns to increase the public's awareness of the benefits of contact and the advantages of voluntary arrangements

Making the Law Work in Practice ( Chapter 8)

Views on the issues to be covered in information on family law and how can this best be disseminated?

An emerging vision was for a short-term, high profile campaign to make people aware of the issues with sign-posting to appropriate outlets for those who wished to follow-up on the details
The most commonly cited priority issues for coverage were family members' responsibilities and rights and the responsibilities and rights associated with cohabiting
Respondents requested that information be presented in plain English, be simple and clear, attractive, up-to date, readily accessible and in age appropriate formats depending on the target audience. Versions were called for in different languages and different print sizes
The most commonly cited ideas for dissemination of information was via TV, media, internet and schools

How can the voluntary sector be strengthened to help them to contribute to securing good outcomes for families in difficulties or transition? How can the complementary skills of counsellors and mediators be mobilised locally?

Respondents called for more substantial, consistent and longer term funding for the relevant voluntary sector agencies
It was considered by many that funding for reconciliation services should be prioritised over funding for mediation services
Respondents thought that services could be better integrated and more comprehensive
Calls were made for better accreditation and qualification systems for volunteers and earlier intervention by voluntary agencies
One idea was for mobile voluntary services to visit areas currently poorly represented by such services

Consultees experiences of using the law

Respondents were concerned by the cost of taking cases to court with much suspicion that there were financial motives for some professionals in dragging out court cases
Calls were made to make Legal Aid more widely available
The adversarial nature of the legal system was viewed as unhelpful in the case of family law
The court process was perceived to be too lengthy and to use outdated terminology not suitable for family law cases
Respondents expressed a wish for courts to become more user friendly with the recommendation that "Family Courts" be established
A small number of respondents voiced their criticism at what they perceived to be a lack of enforcement of court orders

Additional Comments ( Chapter 9)

The most commonly raised theme was that respondents thought that the proposals may undermine marriage and threaten family life
The law was viewed by many as being unfair to fathers, grandparents and others experiencing contact problems
Calls were made for family law legislation to be more child oriented
A common view was that more Government support should go into initiatives which prepared people for marriage

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