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Towards a Scottish code of child and family law
1. 1 Under the Law Commissions Act 1965 it is our duty to keep each area of Scots law with which we are concerned under review
"with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments and generally the simplification and modernisation of the law." 1
Family law is one of the areas with which we are concerned. 2 We have already published a number of reports in this area., most of which have been implemented by legislation. It is now time to draw together the many statutory provisions on family law, along with those few family law rules which still depend on the common law, into one single family law statute for Scotland. This would be of benefit to all users of the law. The proposal to this effect which we made in a recent discussion paper 3 received overwhelming support on consultation. This report therefore makes recommendations. designed to put Scottish family law into such a form that the usual consolidation procedure in Parliament could be used to produce a single, comprehensive Act which would be arranged in a logical, coherent way. If this measure were combined with a new consolidation of the law on local authorities' powers and duties in relation to child care the result would be a comprehensive Scottish code of child and family law.
1.2 This report follows three discussion papers on family law topics which we published in 1990 - Family Law: - Pre-consolidation Reforms, 4 The Effects of Cohabitation in Private Law, 5 and Parental Responsibilities and Rights, Guardianship and the Administration of Children's Property. 6 We are grateful to all those who commented on these discussion papers. Lists of those who submitted written comments are appended. 7 We have been greatly assisted by the comments received.
1.3 We have also been greatly assisted by the results of two public opinion surveys which were arranged for us by the Central Research Unit of the Scottish Office and carried out by System Three Scotland. One was on attitudes towards giving certain legal effects to cohabitation as husband and wife. The other was on attitudes towards the corporal punishment of children by their parents. The results are referred to later in the relevant parts of this report. We were also assisted by research into the use made of judicial separation in Scotland which was carried out for us by the Central Research Unit. This too is referred to in more detail later.
1.4 Representatives of the Commission participated in two public meetings on the proposals on cohabitation. We are grateful to the Faculty of Law, Glasgow University and the Legal Services Agency, Glasgow for organising these meetings. We have also had discussions with a number of organisations who wished to elaborate on their written submissions or explore the thinking behind some of our provisional proposals. Again we found these discussions useful and constructive.
1.5 Parts 11 to VI of the report are concerned with parental responsibilities and rights, the guardianship of children and the administration of children's property. These parts are based on Discussion Paper No. 88. They address such questions as whether the statute law should place more emphasis on parental responsibilities rather than parental rights; whether both parents should have parental responsibilities and rights, whether or not they are married to each other; whether the concepts of custody and access should be replaced, with a view to stressing that both parents remain parents even if they no longer live together; how far the child's own views should be taken into account when decisions affecting him or her are being made; and whether the parental right to administer corporal punishment should be retained as it is, restricted or abolished. Parts VII to XV deal with aspects of the law on marriage and divorce, which were discussed in Discussion Paper No 85. This section of the report addresses such questions as whether marriage by cohabitation with habit and repute should be retained, reformed or abolished; whether the law needs the concept of the voidable marriage; whether the remedy of judicial separation has outlived its usefulness and become a harmful anachronism; whether anything can be done to prevent occupancy rights in the matrimonial home from causing unnecessary expense and inconvenience in conveyancing transactions; and whether the protection afforded by a matrimonial interdict should be extended and should continue after divorce. Choice of law rules on the validity of marriages with some foreign element (for example, marriage abroad, one party domiciled abroad) are also considered, as are choice of law rules on the legal effects of marriage. Part XVI deals with the legal effects of cohabitation in private law. It follows on from Discussion Paper No 86. It addresses such questions as whether a cohabitant who has contributed to an increase in the other's wealth during the cohabitation (for example, by helping to build up a business) should have a statutory claim to some financial provision on the termination of the relationship; and whether a cohabitant should have some claim against the other's estate if the cohabitation is ended by the other's death. The legality of cohabitation contracts is also considered. Part XVII deals with the abolition of the status of illegitimacy which has now become legally insignificant and socially offensive. Part XVIII deals with one aspect of the law of aliment which was left untouched when this branch of the law was codified in 1985, namely the choice of the law governing the alimentary obligation when there is a foreign element in the case, such as the fact that one of the parties is domiciled abroad. Part XIX considers how the draft Bill appended to this report relates to other current developments in Scottish child and family law and suggests one way in which different areas of child and family law, public and private, could be brought together in a comprehensive code. Part XX contains a summary of recommendations. The draft Bill in Appendix A extends to 48 clauses, but it repeals 50 complete sections of existing Acts and parts of many more.
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