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IMPROVING FAMILY LAW IN SCOTLAND: ANALYSIS OF WRITTEN CONSULTATION RESPONSES
CHAPTER ONE BACKGROUND TO THE CONSULTATION
THE CONSULTATION
The Family Law consultation was launched by the Minister for Justice on 5 April 2004. Over 4,000 copies of the consultation paper were distributed to a wide range of people and organisations in the public, private and voluntary sectors. 1 The consultation paper contained proposals for improving Family Law in Scotland to ensure its continuing relevance to Scotland's needs in the 21 st Century. 2
The written consultation exercise was supported by other consultative mechanisms including a series of focus groups held around Scotland. The groups were conducted with a range of interests including married and cohabiting parents, single parents, young people and other family members. The report of the analysis of this interactive consultation is published separately. The consultation team also commissioned Scottish Civic Forum to undertake special events with their members to discuss the consultation topics. Feedback from these events is included in this analysis.
The Scottish Executive consultation team undertook further consultative work with Young Scot and with other key stakeholders in order to engage widely with particular groups on the issues raised in the consultation. Parliament also debated these issues on 16 June 2004.
The consultation period ran from 5 April 2004 until 28 June 2004 although the small number of responses which were received in the week after this date have been included in this analysis. A media launch helped publicise the consultation paper which was made available on the Scottish Executive website. In announcing the consultation the Minister for Justice said:
" Family life should wherever possible be an issue for families themselves. Government and other agencies should not intrude when things are going well. Where we can help is in providing the right kind of support when families hit a rocky patch. And we have a role in providing a sensible framework of legal safeguards when, sadly, family relationships break down.
The legal framework exists already in Scotland - but there is widespread consensus that it no longer provides the safety net of legal safeguards for the way Scotland's people now live their lives.
Some will see any change in the law in this area as a 'defeat' for traditional values. They should not - for the reforms published today are based around a principle that is central to everything we stand for as a country and as a society - the best interests of children. That must be the pillar around which we build strong family law in Scotland."
The proposals to update the law in this area have been under consideration for some time. In 1999 the Government published a consultation paper, "Improving Scottish Family Law" which set out proposed changes based on previous Scottish Law Commission Reviews. This was followed by the Scottish Executive White Paper, "Parents and Children" (2000). For some of the issues raised previously, firm recommendations emerged. However, for other topics, no consensus emerged and the current consultation focused on these areas, aiming to refresh thinking and canvass further opinion.
The consultation paper 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
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
Consultees were invited to focus on the proposals for which no firm recommendation had yet emerged and were also invited to make any additional comments on the proposals for improving Family Law in Scotland.
Further copies of the consultation paper were requested by respondents not on the initial distribution list and by the final cut-off date for analysis, 304 responses to the consultation had been received and have been included in this analysis. 3 This report presents an analysis of these 304 responses. A further 11 responses were received after this final date and although not analysed here, they have been considered by the Scottish Executive consultation team. The findings will inform the development of proposed changes to the law to include in the forthcoming Family Law Bill.
CONTEXT
The Scottish Executive made a commitment to reform Family Law in its Partnership Agreement (2003) 4. The necessity to reform the law reflects significant changes in family make-up and trends in family formation and dissolution over recent decades. Family law provides a legal framework that regulates responsibilities and rights between couples and between children and their parents and others with an interest in their welfare. The framework has not kept in step with the changing patterns of family units and living, and requires to be strengthened in order to maintain protection of vulnerable families and children.
Recent research illuminated significant changes in family formation and dissolution (2004) 5. Key findings were that the number of marriages has decreased steadily since 1951. Increasing numbers of people are living in cohabitation at some stage in their lives with increasing numbers of children being born and raised in cohabiting families. A marked increase in the number of divorces in Scotland was evident up to the early 1980s with numbers fluctuating since then. There was evidence of much confusion over aspects of the status of cohabiting in Scotland with public knowledge and attitudes tending to be poorly aligned with current law and policy.
Ministers now wish to refresh the family law framework to bring it in tune with the reality of modern family formations and to make information on people's legal responsibilities and rights readily available and accessible. Changes will be guided by 3 key principles:
- the best interests of children should be safeguarded
- stability in families should be promoted and supported
- the law should be updated to reflect the reality of families in Scotland today
Not all Scottish family law needs to be re-written. Although family law is based around marriage as a basic institution, recent legislation has made provision for cohabitants 6. Other changes have been the re-defining of the legal relationship between parents and children. However, major reviews have pointed to the need for further specific updating, the removal of redundant provisions and tackling inconsistencies in current law.
The written consultation sought views on specific issues on which no consensus emerged in previous consultations. The individual responses to the consultation have been made publicly available in the Scottish Executive library and on the Scottish Executive website unless the respondent has specifically requested otherwise.
The remainder of the report presents the "story" of the consultation, - the consultation process (Chapter 2), reflections on that process (Chapter 3), and the findings of the analysis (Chapters 4-9).
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