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IMPROVING FAMILY LAW IN SCOTLAND: ANALYSIS OF WRITTEN CONSULTATION RESPONSES

CHAPTER SIX PARENTAL RESPONSIBILITIES AND RIGHTS: STEPPARENTS

The consultation stated:

A proposed change in the law is that where a married step-parent wishes to secure PRRs for their step-child and both birth parents are in agreement, that Step-Parent Responsibility and Rights Agreement (SPPRRA) can be completed and registered in the Books of Council and Session and that that action will confer PRRs on the step-parent.

The consultation asked:

6.1 DO YOU AGREE THAT PROVISION TO CREATE SPPRRAS SHOULD BE INTRODUCED?

In total, it was clear from 152 responses whether the respondent supported or opposed this proposal, with a further 1 response providing both support and opposition. A few remaining responses provided no clear view but added commentary of relevance. Responses from the individual respondent sector differed in general from those submitted by organisations with two-thirds (67%) of the former responses agreeing with the proposal compared with a minority (44%) of the latter. Overall, 58% of those who responded were in favour of the proposal to introduce SPPRRAs. A summary of views is provided in Table 9 below.

Table 9: Summary of views on the proposal to introduce SPPRRAs

NB. Percentages may not total 100% exactly due to rounding

Commentary regarding this proposal was wide-ranging with an overlap in views of those expressing their overall support and those opposing what was proposed. Comments submitted which broadly supported or opposed the proposal are summarised below.

Comments Broadly Supporting the Proposal

A recurring theme was that acquiring SPPRRAs in this manner was advantageous in that court proceedings which could be costly and complex could be avoided (Indiv 23, Indiv 110, Char 127, Legal 190). The proposal was seen as "child centred" (LG 254), providing added security for the child (Indiv 34, Couns 124) and was consistent with legislation in other jurisdictions (Legal 313).

The proposal was perceived as contributing to the enhancement of the role of the stepparent who, it was argued, tended to be thought of as a " second class citizen" (Indiv 23) with a negative image (Char 317). It was considered that SPPRRAs could strengthen the bond between stepparent and stepchild (Indiv 146) and assist in the formation of a " happy family" (Indiv 42).

The introduction of SPPRRAs was also seen as a practical step which would be beneficial in times of say, requirement of emergency medical treatment of the child (Char 127, Char 317). SPPRRAs were viewed as contributing to consistency in care in the event of a birth parent's death (Char 187, Legal 313, Misc 326).

Some respondents provided views on the circumstances in which a SPPRRA should in their opinion be permitted. A common concern was that such an agreement should be introduced only after consultation with the child and the child's agreement gained (Indiv 129, Indiv 136, LG 254, Pol 266, Legal 313). Two commentators suggested that children who were deemed old enough should be given the right of veto over any decision regarding the award of an SPPRRA (Indiv 167, Misc 260).

One comment was that the award of SPPRRAs should be permitted after the death of one birth parent (Indiv 68, Char 127). Other views were that safeguards required to be in place to ensure that the child's best interests were being served (FM 88), voluntary organisation support should be provided alongside the award of the SPPRRA (Faith 114) and perhaps Disclosure Scotland checks should be undertaken on stepparents prior to any award (Faith 114). A suggestion was made that the agreement should automatically terminate if the marriage dissolves (Indiv 136).

One respondent considered that the mental health of both birth parents should be established prior to accepting their consent to the SPPRRA (Char 175).

Two commentators argued that perhaps a modified version of what was proposed might be appropriate with responsibilities and rights given to stepparents but not at the level of those held by birth parents (Indiv 17, Indiv 53).

Several respondents expressed a general point that in their opinion that the agreement should also be available in the case of same-sex couple relationships (Univ 122, Char 184, Misc 202, Couns 216, Char 258, Couns 259); and in the case of cohabiting heterosexual couples (Univ 122, Char 187, LG 324, Misc 366).

Comments Broadly Opposing the Proposal

Two main themes dominated the arguments of those opposing the proposal. These are described below.

• Proposal does not detail how the child's views will be taken into account

This concern was raised by a substantial volume of respondents with some expressing "deep concern" (Misc 267) and describing the proposals as "adult focused" and driven by the need for "adult convenience" (Legal 208). Calls were made for the introduction of a robust mechanism to take into account the child's view (Char 332) and meet existing legal requirements in this regard (Univ 122). The question was raised as to what would be the outcome in circumstances where the child's view opposed the views of all adults in the case (Char 90). One suggestion was that a curator/advocate should be established with the role of securing children's views (LG 56).

Other respondents extended the debate by arguing that the proposal does not pay heed to the child's welfare and best interests (Indiv 2, Indiv 60, Char 262, Legal 323).

• The proposal paves the way for complications in a child's life by permitting too many adults to have responsibilities and rights over them

Again, a substantial volume of respondents raised this as a problematic issue. Most commonly cited was the hypothetical circumstance in which a birth parent's marriage to the stepparent could break up with remarriages possible, bringing with them further possibilities for awards of SPPRRAs and more and more adults with responsibilities and rights associated with one child. The occurrence of such circumstances was seen as increasing, particularly if the proposed reduction in time periods of non-cohabitation prior to divorce are introduced (Legal 325). One suggestion was that perhaps there should be a set limit on the number of adults who can acquire such an agreement in relation to any one child (Faith 255). Another suggestion was that those with SPPRRAs be given guiding roles but no more than that (Indiv 20).

A recurring view was that a rise in numbers of adults with SPPRRAs associated with one child may serve to fuel tension and conflict where this may not have previously arisen. One respondent envisaged this leading to an increase in court actions and associated costs (Legal 121).

Connected with these concerns were those of respondents who considered that the proposal, as outlined, to some extent facilitated the treatment of children as commodities with which to trade (Indiv 12, Faith 171, LG 185, Char 213, Char 317, Char 319).

Other arguments against the proposal were documented by respondents from across a variety of sectors:

• Court is the proper forum for such decisions as all aspects of a child's situation can then be considered and checks can be done on the background of the stepparent (LG 50, LG 59, Char 75, Legal 150, LG 185, LG 182, Faith 255, Char 317, Char 319). One comment was that one of the highest risk factors in child abuse was a mother's new partner (Char 213). Another view was that the ideal should be to make the current court system more accessible rather than changing the law (Pol 104).
• If a family is working co-operatively then there will be no need for such agreements and these are likely to be sought only in problematic circumstances (LG 56, Indiv 81, FM 82, Char 184, Legal 186).
• SPPRRAs may be difficult to revoke once awarded and a mechanism will be required to enable requests for the withdrawal of SPPRRAs to be considered (Char 75, Indiv 128, Char 127, Misc 164, Misc 220, Misc 267, Faith 318).
• SPPRRAs might serve to marginalise or undermine the absent birth parent (Indiv 4, Indiv 22, Indiv 311).
• Such rights can be acquired by adopting the child (Indiv 4, Indiv 45, Faith 322)
• It is inappropriate for a birth parent to sign off responsibilities for their child (Indiv 134)
• The proposal will not improve on the status quo (Legal 316, Indiv 333)

6.2 HOW CAN THE VIEWS OF CHILDREN BE FACTORED INTO SPPRRAS?

Overall, 100 responses addressed this question. A few stated simply that children's views should be taken into account, with others emphasising that this issue needed greater consideration. More substantive comments are summarised below.

Age at which Children are Old Enough to Provide Views

Many respondents commented that children's views should be systematically factored into SPPRRAs as soon as they are judged to be mature and competent enough to provide these. Others suggested specific ages at which this would be likely:

• 6-8 yrs (Misc 164)
• 8 yrs (Indiv 84)
• 8-9 yrs (Indiv 284)
• 10 yrs (Indiv 1, Faith 162)
• 12 yrs (Indiv 23, Indiv 24, Indiv 25, Legal 190, Legal 313, Mist 326)

One respondent suggested that if the child was deemed not old enough to provide a measured view, then they could be observed in their interaction with relevant adults and another competent person could provide a view based upon this observation (Indiv 53). Another view was that in such cases, the SPPRRA would simply have to wait until the child was mature enough to provide a competent opinion (Indiv 331). A common suggestion was for the award of the SPPRRA to require the submission of a formal statement which recorded that the child involved had endorsed (or not objected to) the SPPRRA, or was too young to provide a competent view (Indiv 23, Faith 162, Legal 190, Legal 313, Misc 326).

Child to Provide View Without Parent/Stepparent Present

A recurring theme was that children, when interviewed about the SPPRRA, may feel pressurised into giving the response which they think will please the relevant adults present, and that any interview with the child should take place in the absence of the child's parent and stepparent.

A wide variety of suggestions was made for personnel who might be appropriate "child interviewers" in these circumstances. These suggestions are summarised here:

• Mediation service practitioners (Indiv 17, Indiv 18, LG 59, FM 88, FM 91, Pol 266, LG 324)
• Competent child focused professionals/agencies (Indiv 34, Misc 54, Char 127, LG 133, Indiv 137, Couns 216, Indiv 252). A call was made for the use of age appropriate language and an emphasis on putting the child at their ease (Char 127). Another suggestion was for the use of drawings, videos and letters to aid the child in their decision (LG 133)
• Someone who knows the child well - a teacher (Indiv 44, Indiv 148, Legal 190)
• Someone who knows the child well - a friend (Indiv 148)
• Social Worker (Indiv 69, Indiv 76, Legal 190, Indiv 252)
• Health Visitor (Indiv 176)
• Independent Advocate (Char 332)
• Solicitor specialising in child care law (LG 185, Legal 190)
• Sheriff (Indiv 12, Faith 93, Faith 114)
• Court officer in an informal fashion (Char 206)
• Child psychologist (Misc 164, Indiv 252)
• Trained counsellor (Indiv 167)
• Family Law Centre (Indiv 205)
• Children's Panel (Indiv 18)
• Safe guarder system (LG 185, LG 254) (Although one comment was that safe guarders are inappropriate as they are not accredited (Indiv 205))

It was stressed that interviews should take place in an environment with which the child was familiar (Char 71) and handled sensitively (Indiv 76, Indiv 137), perhaps over a period of time rather than a one-off interview (Char 144). Follow up materials such as leaflets, a help line and website for further information were suggested as potentially useful for the child (LG 133).

Child's Views Ascertained in Presence of Parent/Stepparent

A contrasting stance was that children's views could be best sought in the presence of their family (Indiv 145, Indiv 147) in situations such as a Family Court (Indiv 116), Family Group Conferencing (Char 317), with a mediator working with the family (Indiv 42) or in some general independent family support situation (Couns 124).

Contrasting Views

Other responses provided further examples of divided opinions on the issue of factoring children's views into SPPRRAs. A few respondents urged that new robust mechanisms be established for this process (Char 90, Char 187, Char 332). However, another view was that children's views should not be canvassed. This was seen as unfair to the child (Indiv 42, Indiv 134) and inappropriate as children may not make rational decisions (Indiv 74).

Another school of thought was that ascertaining children's views should be left to the parents involved (Indiv 23, Faith 93, Faith 114, LG 254, Faith 322). However, at the opposing end of the spectrum, a few respondents considered that these matters should be dealt with only by the courts (LG 28, LG 185, Misc 220).

A few respondents interpreted the consultation question as referring to the views of children more broadly (not pertaining to their own particular circumstance). Suggestions were made that children's views could be obtained by opening up the consultation to them (Indiv 10, Indiv 140) or by covering these issues in Media Studies classes at school (Indiv 205).

6.3 AS AN ALTERNATIVE, WHAT IMPROVEMENTS COULD BE INTRODUCED TO STEP-PARENTS GOING TO COURT TO SECURE PRRS TO MAKE THIS LESS DAUNTING?

In total, 60 respondents provided commentary to address this question.

The most common response was to suggest that a " Family" or "Children's Court" be established to handle such cases (LG 133, Char 144, Indiv 145, Indiv 147, Indiv 148, Indiv 305, Pol 266, Misc 326, Indiv 333). It was envisaged that such a court would have a less formal atmosphere, be more accessible and encounter no undue delays or deferments (LG 133). Suggestions were for the court to operate in a fashion more akin to that of the Children's Hearing System with less of an adversarial approach (Pol 104, Misc 326, Faith 318, Char 317, Char 320).

Other suggestions for making the court system less daunting included:

• Holding private hearings in chambers (Indiv 12, Char 184)
• Holding hearings around a table at which the sheriff sits with the family (Indiv 17, Indiv 34, Misc 326)
• Making the system more comprehensible/better understood (LG 28, Misc 260, Misc 326)
• Simplifying proceedings (Indiv 29, Indiv 60)
• Fast tracking proceedings (Indiv 29, Char 144, Indiv 145, Indiv 148)
• Making proceedings more informal (LG 59)
• Using a video link for family members to contribute their views (Indiv 130)
• Using plain English on forms (Char 175)
• Making the system more "accessible" (Char 317)
• Ensuring no wigs or gowns are worn by the judiciary involved (Misc 326)
• Using a system akin to the simplified divorce procedures (Legal 190)
• Using sheriffs with more specialised knowledge of the issues (LG 133)
• Retraining the relevant judiciary in the appropriate handling of these cases (Char 144)

A few respondents suggested that time spent by the family on preparation with mediators, counsellors and/or support workers would aid in making the actual court process less daunting (Indiv 40, LG 59, Couns 124, Pol 266).

Other comments were that court should be less expensive (Indiv 57) with the suggestion that some children may lose out because their parents can not afford to take their case to court (Legal 313). A call was made for Legal Aid to be readily accessible (LG 59).

Several respondents addressed the question by considering alternatives to the court process. In particular, it was thought that where all parties were in agreement, court could be avoided by families having legal documents drawn up by solicitors (Indiv 10, Indiv 76, Indiv 83, Indiv 135, Indiv 198) or by undertaking a form of DIY agreement, following easy to understand leaflets and guides (Indiv 44). Another suggestion was for the construction of a menu of responsibilities and rights from which families could select those most appropriate to their situation in a voluntary arrangement (LG 56).

A few recommendations were made for locations other than the court which may prove suitable for decisions on SPPRRAs. The home of the stepparent (Pol 104) and the Registrar's Office (Indiv 331) were cited in this regard.

More general comments were also provided. Several respondents stressed that the process should not be made less daunting given the seriousness of the issues (Char 71, Faith 96, Indiv 140, Legal 150, Indiv 252, Misc 260, Indiv 310, Legal 323). One comment was that:

" there is no reason at all why this should be made as easy as going to the supermarket" (Legal 323)

Others questioned whether the process was, indeed, daunting in circumstances where all were in agreement (LG 182, Legal 186).

Finally, it was argued that trained Family Mediators could provide valuable input into any body set up to make changes to the court process for SPPRRAs (Indiv 57). One respondent saw the issues as extending into broader fields:

" this opens up the whole question of the way that family disputes are handled by the court and whether the present adversarial system is the best forum for family disputes" (LG 63)

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