CONSULTATION TO SUPPORT FAMILY LAW REFORM -
SUMMARY OF FINDINGS
In March 2004 the Scottish Executive published its
consultation paper on improving family law in Scotland. The
Executive received 304 responses from a wide range of
individuals and organisations. This exercise was also
supported by a series of focus groups across Scotland with
people likely to be affected by the proposed reforms, and
by three events run by the Scottish Civic Forum with their
network of members. A brief summary of the overall findings
is provided below. The
full reports of
these consultation exercises were published on 13 October
2004.
Parental Responsibilities & Rights (PRRs)
for Unmarried Fathers
- The majority view was firmly in favour of the
proposals for PRRs for unmarried fathers who register
their child's birth jointly with the mother.
- It was felt to be a necessary and acceptable change
to the law and it was generally believed that the
current law can be unfair, particularly to fathers who
are fully committed to their child's upbringing.
- Some respondents were concerned at what they
believed was a requirement for the father to always be
present at registration of the birth (this in fact
rests on a misunderstanding: there is already provision
for joint registration even where a father cannot
physically be present, using the statutory declaration
process).
- The majority view was for PRRs to be awarded in
relevant new cases after the legislation was
operational, rather than applying retrospectively. A
recurring theme was the perceived need to make people
aware of the change in the law 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 among those responding to the
consultation paper on reducing the periods of
non-cohabitation required to constitute grounds for
divorce. Most individual respondents were against this
proposal and most responses from organisations
expressed support. However, the proposal was supported
by many of the individuals who participated in the
focus group discussions.
- The three main reasons for opposition to a
reduction in time periods were that divorce may
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.
Legal protections for cohabiting
couples
- Approximately half of those responding to the
consultation paper supported the proposal that
cohabiting couples have legal protection. Among those
participating in focus groups, the majority recognised
that cohabitation is now more prevalent in Scottish
society, and many shared the misconception that 'common
law' status confers some form of legal protection.
- More than two-thirds of respondents overall were in
favour of a set of legal safeguards rather than a
comprehensive package of rights and responsibilities
like marriage.
- The majority also considered it fair that
cohabitants should have the rights to apply in court
for financial support after a relationship breakdown,
to take account of any economic disadvantage that one
party may have experienced in the interests of their
other or of the family. It was also considered fair
that, following the death of a partner, the surviving
cohabitant should be able to apply for a discretionary
share of the estate.
- A recurring theme was that legal protection of
cohabiting couples should not be instigated until
couples had cohabited for a set period, though
difficulties were envisaged in establishing the start
and end dates of cohabitation.
- Main reasons for opposition to the proposal were
that this would undermine marriage and discourage
people from marrying.
Step-parent Parental Responsibilities &
Rights Agreements (SPPRRAs)
- More than half of those responding to the
consultation paper supported the idea to enable a
married step-parent to reach agreement with the birth
parents about parental responsibilities and rights over
a child, without recourse to court, though more
individuals than organisations expressed support (the
consultation paper made clear that the Executive had
not reached a firm view on this).
- There was also initial support among focus group
participants, though some concerns emerged about the
complexity of the family unit due to the possibility of
multiple parties having PRRs over a child.
- The proposal was seen as contributing to the
enhancement of the role of the step-parent, was a
practical step and could strengthen the relationship
between step-parent and step-child.
- A recurring theme was that this would reduce the
need for court proceedings.
- A call was made for the introduction of a mechanism
to enable SPPRRAs to be revoked under certain
circumstances.
Contact between children and the wider
family
- Of the written responses containing a view, less
than half overall were in favour of a right of contact
for grandparents. The view of organisations was
strongly against. Among focus group participants, a
right of contact (restricted to grandparents only) was
seen as potentially contentious, with the majority of
young people and grandparents in those groups
unconvinced of the appropriateness of such a
change.
- Many respondents acknowledged the valuable role
that grandparents can, and do, play in their
grandchildren's lives. However, they did not
necessarily 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.
Other key findings
- Knowledge of rights and
responsibilities was generally poor. An
emerging suggestion was for a short-term, high profile
campaign to make the public aware of key family law
issues, with sign-posting to appropriate outlets for
those who wished to follow-up. 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.
- Knowledge of existingfamily support services was low among
focus group participants. However, such services were
considered to be extremely important, given the
perception that many family-related issues can escalate
quickly if appropriate support and advice is not sought
soon enough. The proposed development of family support
services to provide a more cohesive and integrated
service was well received.
- Knowledge of legal processes was
generally limited to those who had sought legal advice
for family-related issues. For those who had not
experienced legal processes, their perception was
informed by experiences of friends, relatives and the
media. Many felt that the language used in legal
processes can be complex and difficult to understand,
and that legal proceedings can last too long. Thus
potential improvements were to make legal proceedings
shorter and to limit the use of complex technical legal
'jargon'.