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Family Matters: Improving Family Law in Scotland

Report from three events held by the Scottish Civic Forum in:

Glasgow, 10 June 2004
Perth, 14 June 2004
Dumfries, 22 June 2004

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Introduction

In November 2000, the Scottish Civic Forum held a public dialogue in Glasgow to discuss the proposals contained in the Parents and Children White Paper on modernising Scots family law. This event brought different civic groups together and there was widespread feedback from those who took part that the event had been a great success in drawing people together who do not usually engage in discussion on these issues. On the launch of a new consultation in May 2004, "Family Matters: Improving Family Law", the Civic Forum pledged to repeat this dialogue. All the original participants were invited to re-convene to examine the further consultation proposals and once again wider civic society was invited to participate. The Scottish Executive also commissioned the Scottish Civic Forum to mirror this event at two further meetings in Perth and Dumfries.

The focus of all three events was on group discussion of the issues. In Glasgow there was also a panel at the end of the event. In all, around 34 people participated in the dialogues.

Process

One of the main reasons for commissioning the Civic Forum to hold this process was to open up the consultation to a wider audience. Invitations to participate started with the Civic Forum's own membership and contacts which comprises over 2000 individuals and organisations, and then reached beyond to as many potentially interested parties as could be identified. Every effort was made to spread news of the events and encourage participation, including circulation through all relevant networks.

The events in Dumfries and Perth were organised and advertised locally by Scottish Civic Forum Co-ordinators; a network of local-based workers who specialise in working with networks of smaller, grassroots-level organisations. The Co-ordinators, like all Civic Forum staff involved in this type of work, have developed expertise in planning and running consultation events based on the two principles mentioned above. The overall process was co-ordinated by staff at Scottish Civic Forum head office.

The Scottish Civic Forum is an organisation committed to building a new culture of active participation, in which the people of Scotland have a genuine opportunity to be involved in influencing the government policies that affect our lives. One of the main ways we do this is through organising regional events on current political issues. Civic Forum events are designed to provide opportunities to discuss issues with different people from different backgrounds and points of view. This dynamic not only allows participants to hear new ideas and perspectives they otherwise may not, but it also creates new ideas as a result. The Civic Forum designed these particular events with two key principles in mind; firstly, to provide a "safe space" where people with different views and opinions could come together, and secondly to record views without bias or judgement, giving all views equal weight and value. The purpose of this particular meeting on Family Law reform therefore, was not to build some sort of consensus but to give people an opportunity to share their views, and have the chance to listen to points of view very different from a participants' own perspective. It is primarily for this reason that there is no final conclusion included in this report.

Before this process had started, a Scottish Civic Forum briefing paper on the consultation had been widely circulated throughout civic society. This paper was aimed at providing an introduction to the key themes up for discussion. All those registering in advance for the events in this process were also sent the paper. It was hoped that with the aid of this paper, those at the events would start with a certain degree of familiarity with the proposals.

Feedback from group discussions:

As at the original meeting in 2000, there was consensus that the welfare and rights of children were paramount. However, on individual elements there was considerable variation. The remainder of this report draws together and discusses the issues within the relevant themes reflecting the points made at the meetings. A separate paper has been submitted which records the views expressed at each meeting.

Issues on which firm proposals are made

The first group of issues were ones on which the Executive felt that there was a clear enough response from the first consultation to be able to make firm proposals:

• Parental rights and responsibilities for unmarried fathers
• Reducing the non-cohabitation periods required for divorce
• Updating the law on matrimonial interdicts and exclusion orders
• Technical amendments

Parental Rights and Responsibilities (PRRs) for Unmarried Fathers

The majority of participants at all three meetings agreed with the proposal to confer parental rights and responsibilities on unmarried fathers. Particular benefits were identified in relation to those in stable relationships. A number of fathers present felt particularly strongly that this should be introduced because they felt that women currently almost automatically have rights in relation to their children and that fathers are often seen as the provider of economic support but denied parental rights and responsibilities.

There was some support for retrospective legislation to include unmarried fathers whose children were born before the date of the new legislation to prevent discrimination against unmarried fathers whose children had been born prior to the new legislation. However, it was acknowledged that there were questions about how feasible this would be.

While the majority were in favour of the proposal to introduce PRRs for unmarried fathers, strong views were expressed by some participants at two of the meetings that the Scottish Executive needs to be doing more to promote the importance of marriage as the most stable relationship in which to bring up children and that the importance of reconciliation for separated couples should be reinforced. Some participants felt that Christian values such as marriage should be upheld as an example. In Glasgow, there was some concern that the approach to PRRs was adult rather than child-orientated - for example, there was no proposal to ask the child who they wanted to live with or have contact with.

The other main identified concern related to where there was conflict between parents. The issue of conflict was raised in both Glasgow and Dumfries. For example, extra rights might create more scope for single fathers to intimidate the mother. It was important that it was understood that responsibilities came with those rights particularly since some unmarried fathers shirk their responsibilities at present. Mediation could be an option but was only possible if both partners agreed to it.

The other issue of concern raised in Perth related to the range of cases covered by the term 'unmarried father' and questions about whether PRRs might be problematic when the person concerned was very young, perhaps leading an erratic lifestyle. In these circumstances it was felt that the relationship with the mother would be likely to be short-term. It was suggested that some sort of assessment system before PRRs were granted could help to avoid problems, although it was recognised that this may not be feasible.

Reducing the non-cohabitation periods required for divorce

The majority of people supported reduction in the separation period before divorce could be granted. However some people in Glasgow had strong objections on the grounds that it would reduce the chances of achieving reconciliation and that by changing the law, marriage would become too easily disposable. Church representatives wanted an assurance that the government would not undermine the state of marriage.

While one person argued for a 3-year period for contested divorce and 18 months where uncontested, the majority of people felt that the periods suggested by the Scottish Executive were too long and that slowing the process often meant 'upping the aggro' and could often put more pressure on children. In Perth, those who supported change felt that if divorce was to happen then it should be as quick and as painless as possible. In Dumfries, while it was agreed that the five year period was too long: children could keep up hopes of reconciliation and were ultimately crushed when the outcome was the same. However, others at the meeting pointed out that the grieving process for loss of any kind took between one and two years and that in the first year emotions ran high. This suggests that some people at that meeting felt that a one-year separation period was too short.

The point was also made that in Jewish marriages, while a marriage is automatically adopted into civil law there is no similar link when a Jewish marriage ends in divorce (the process of divorce in Jewish marriage can happen within weeks if both parties agree). This means that unless there is provision to allow a linkage between Jewish divorce and civil divorce, there can be no clean break. The earlier consultation proposed a mechanism to allow sheriffs to take account of this: concern was expressed by a representative of the Jewish communities that this is not mentioned in the current consultation.

In relation to blame, some views were expressed that 'fault' was required as a demonstration that in the two-way contract of marriage someone had defaulted and considered that eliminating fault would be the end of the family as an institution. However, the prevalent view was that the presence of the ability to 'blame' or cite 'fault' encourages acrimony and conflict. Concern was also raised that the concept of fault is used to speed up divorce in some cases.

It was suggested that the Executive should look at why the divorce rate is rising - concern was expressed also about the amount of public expense incurred in dealing with divorce through the courts. The case for mediation as an invaluable tool for supporting and helping people was also strongly expressed.

Matrimonial Interdicts and Exclusion Orders

There was a strong degree of support for the extension of Matrimonial Interdicts to cover places frequented by the victim and children e.g. schools and workplaces. It was recognised that while some people feel genuinely abused and unable to seek help, there are some who might abuse the interdict process. In Glasgow the majority felt that it was necessary to err on the side of protection. In particular it was felt that single mothers and teenage mothers who are not mentioned in the proposals as well as same-sex couples are not currently receiving the support they need.

However, a minority of participants were very strongly of the view that as the law currently stands, there is a bias against men in relation to interdicts and exclusion orders. They felt that women could use the 'physical abuse card' to get their own way and that measures are sometimes used on the strength of allegation rather than proof. It was suggested that examples of 'bad men' are used to exclude 'good men'. It was suggested that lying to obtain an interdict could be a prosecutable offence.

There appeared to be no disagreement about the proposal to extend the power of arrest although it was suggested that family therapy was a better approach. In Perth it was suggested that the duration of power of arrest should be determined on a case by case basis.

Technical Amendments to Family Law

These were not discussed in detail at any of the meetings but no disagreement was expressed about what is proposed.

Issues on which further views were sought

The second group of issues were those on which the Scottish Executive considered it needed further reflection and consultation:

• Legal safeguards for co-habitants
• Step-parents and parental rights and responsibilities
• Contact between children and wider family

Legal Safeguards for co-habitants

There was general support for these proposals. In Perth it was felt that legal safeguards were better than comprehensive rights which might challenge the state of marriage and it was suggested that there should be a 'trigger period' for cohabitation after which the safeguards came into force. In Dumfries it was suggested that co-habitees including same-sex couples should register the date of their commitment so that the length of time of separation could be measured. Some people were of the view that some safeguards should be directly linked to the presence of children.

While there were a number of people who agreed there should be a differentiation between rights for married couples as opposed to co-habitees, there was a significant view that the proposals did not go far enough. As one Glasgow participant said 'I don't see why the woman I have lived with for 20 years shouldn't have a fair share in the things we own as she would have had if we were married.' Concern was also expressed that only household goods and money appeared to be covered and the point was made that fathers who are not the main carer still have additional expenses e.g. for a larger house with room for his children to sleep in, travelling expenses and so on. It was suggested by one participant that men can find it more difficult to secure Legal Aid because they are often working.

A number of people in Glasgow supported the fact that these proposals seemed to put children first, however in Dumfries some participants felt that the proposal did not seem to put children first and this was a concern to them given the consensus that the welfare and rights of children should be the over-riding element. It was agreed, for example, that children of all partnerships should have the same rights in the division of property and finance on the separation or death of one parent.

Some people suggested that co-habitees could draw up their own contract rather than conforming to Scottish Executive guidelines but one person pointed out that couples do not necessarily look ahead in this way. Another person felt that when lawsuits come into play it is often implied that women have been coerced into signing such contracts.

Finally it was suggested that the rights and responsibilities should be clearly defined and that there needs to be an education programme on these as well as on marriage.

Stepparents and parental rights and responsibilities

There was general agreement that contact was important, however, there were concerns about the extension of PRRs to married stepparents from some people in Perth, who felt that it could be confusing for children and might lead to a risk of clashes and thus more distress for children. On a more positive note in Dumfries it was felt that married stepparents had made a long-term commitment to each other and usually to any children of either party. The task for the Executive was to proceed in the best interests of the child.

SPPRRs would be difficult to revoke which could lead to problems and in Perth it was felt that contact was more important than PRRs. Different views were expressed in Perth and in Dumfries about the involvement of children in decisions about contact, with some people in Perth expressing concern that if children were 'factored in' they could be manipulated by adults. In Dumfries on the other hand it was felt that children as young as six or eight could and should be listened to - although it was recognised that they may not wish to upset the adults concerned. Estranged parents could find it difficult to gauge correctly the feelings of the child but it was felt that child psychologists could be employed to help with this. On this latter point it was felt that guidance should be sought on best practice in seeking the views of children.

In Glasgow there was no discussion of these issues.

Contact between children and wider family

There were mixed feelings about these proposals in both Glasgow and Perth while in Dumfries grandparents were strongly of the view that they should be allowed some form of contact with children. In Dumfries while there was general support for the right of contact for grandchildren it was emphasised that the child should always be asked and that the 'listener' needs to be well-trained and tuned in to the problems children face when parents separate.

There was general support for the view that contact with wider family was very important and that grandparents often miss out when parents separated. Some people felt the position of paternal grandparents was particularly problematic because of what they see as bias against men in the current legislation.

Concerns focused around three main areas: potential for confusion; potential for abusers taking advantage of the access rights of grandparents; and risk that the legal process involved could destroy families. On the first of these one person argued that in some cases four sets of grandparents could potentially have a right to contact and that this could result in a child spending all his/her free time being ferried from one grandparent to the next... A possible solution was suggested through using mediators or promoting consensus building looking at the root of family conflict rather than resorting to the courts. Contact centres were also suggested to help in difficult situations as well in assisting fathers with a history of violence to meet their children in a safe environment. It was suggested that current mediation services may not be adequate to support these needs. Lawyers' self-interest was alluded to in relation to court involvement and it was suggested that the medical rather than the legal profession needed to be involved.

Making the Law Work in Practice

The final section of the consultation referred to how the law could be made to work in practice.

Promoting information about the law to families

It was generally felt that information is currently fragmented and that co-ordination is necessary. A website could provide basic information on the rights and responsibilities, legal situation etc and information via schools and colleges was also suggested. In Dumfries it was felt important that messages reach all families and that radio, TV, etc should be used to raise awareness about parents' rights and responsibilities and of the options available to parents, for example, the ability at the moment for people to enter into voluntary agreements that would offer them a degree of legal protection. Options needed to be made clear to people and systems put in place so they can make their choices easily.

The question of adequate resources for organisations involved in support, dissemination of information and education was raised - e.g. 'Care for Families' who promote family education.

Services for families in difficulties or transition

Resources were a key issue raised in this context by participants. Some people felt that the body of knowledge about securing good outcomes for families was not good enough to cover all situations and that specialist advice was often needed. Although it was recognised that the cost of counselling and family therapy is expensive, it was pointed out that court action is also expensive and that in any case courts are places for legal argument and decision rather than being the best place to resolve family issues. Courts operate within a professionally restricted legal mechanism and cannot be responsive enough to the emotional and personal issues that arise in family disputes.

Since many marital problems arise from financial problems it was also felt that there needs to be more money advice services available. Rather than having resources cut back, voluntary services, social services and primary health services should be being more adequately resourced to help families in difficulties or in transition. The focus of the Executive's question solely on the voluntary sector when a range of public agencies was also involved in service provision and support, was queried.

Other issues raised

The main additional issues raised were:

• need to more fully resource voluntary and public sector services to support families in transition or in difficulties and as mentioned above, recognising that current resourcing of court services to deal with family law issues currently costs substantial amounts of money.

• need for co-ordinated and widely available information and educational materials for all concerned - children and adults

• Church representatives' view that the Executive should emphasise a desire to promote the state of marriage as the most suitable environment for children

• possibility of highlighting to people that they can voluntarily enter into agreements to give them legal protection in the event of relationship breakdown

• need of those married in Jewish law to have divorce under Jewish law recognised through giving sheriffs the right to exercise discretion to allow it - Jewish marriages are automatically adopted in civil law but divorce is not.

• ability to prosecute if someone lies to obtain an interdict