Improving Scottish Family law

Foreword

The Government have undertaken to strengthen family life. The family is the most secure basis for bringing up children. Families are at the heart of our society and the breakdown of family life damages the fabric of our society. Families should provide the day-to-day support for children, enabling them to be brought up in a stable and loving environment. The Government have a role to play in supporting good parenting and in setting the framework in which families can flourish.

The Government are pursuing a range of practical measures designed to help families flourish in Scotland. These represent a significant investment in families in Scotland of over £230 million. These measures include (in addition to this consultation):- promotion of the Children (Scotland) Act; healthcare proposals in the public health White Paper Towards a Healthier Scotland; expansion of affordable childcare of good quality; expanded pre-school education; research and action on programmes for parenting skills; a whole range of family friendly policies including improved maternity leave, the Working Time Directive and the minimum wage; specific policies on problems of concern to families, such as domestic violence, teenage pregnancies, drugs and youth offending, and the New Deal aimed at youth unemployment.

This consultation is just one element of this package of measures. A separate leaflet Helping the Family in Scotland which describes the measures is distributed with this consultation paper. Copies can also be obtained from the address given below in the Introduction to this paper.

One way in which the Government can help is in setting the right legal framework for the relationship between couples and between parents and children, in other words - Family Law. This Government believes that Family Law should be based upon the following principles. Parents have prime responsibility for their children. The state and the courts should only intervene in the family if parents are unable to exercise their responsibilities and rights, and if to intervene is in the best interests of the child. Children should have the opportunity to express their views and for their views to be taken into account by their parents, the courts or others who are considering major decisions which will affect them. In the event of a risk of divorce, parents should be fully informed of the implications for their responsibilities and rights and should take full account of the possible effects on their children. In the event of separation or divorce of parents, parental responsibilities and rights should normally continue, with each parent having an active responsibility to promote the child's continued relationship with the other parent. When a marriage breaks down, there should be fairness between the divorcing parties with matrimonial property being shared fairly, taking into account the arrangements for the care of the children and any exceptional circumstances. The best interests of the child should be the paramount consideration of the courts. No divorce should be granted until appropriate arrangements have been made for the children of the marriage. The legal arrangements for the break up of a marriage should avoid acrimony as far as possible.

These principles already flow through Scottish Family Law. The most recent innovation in Family Law - the Children (Scotland) Act 1995 - is a fine example.

However, the law must evolve and develop to suit the needs of and changes in society. So, as well as seeking views on how to implement recommendations which the Scottish Law Commission made some time ago, this consultation paper asks consultees to consider other aspects where it has been suggested that the law needs to develop.

A primary concern is the stability of family relationships where children are involved. The Government's view is that two parents offer the best prospects for their children and that stability is most easily found within marriage. With that in mind, this paper proposes a new mechanism for Scotland that will allow Government a more direct means of contributing to the funding of organisations that assist people who are experiencing family problems.

The Government hope that this consultation on Family Law will stimulate debate and help to inform consideration of this important subject by the Scottish Parliament. Ultimately, if any changes to legislation prove necessary as a result of the consultation, it would be for the Scottish Parliament to make such changes.

I am sure that the new Parliament will find this paper a valuable focus for its deliberations.

Henry McLeish MP Minister for Home Affairs, Devolution & Local Government