|
|
|
|
The draft Bill
19.1 The draft Family Law (Scotland) Bill appended to this report would, if enacted, implement the recommendations made in this report and make other minor and consequential amendments. In some clauses of the draft Bill the draftsman has re-enacted existing provisions in a modified form, rather than create a patchwork of amendments. Where this has been done it is mentioned in the notes on the draft clauses. These notes also explain the reasons for any minor or consequential amendments which have not been mentioned already in the preceding parts of this report. The draft Family Law (Scotland) Bill appended to this report is a major law reform measure in its own right, but it is also part of a wider process of reform.
Other developments
19.2 Important developments are currently taking place in relation to child care law. A Review Group was appointed by the Secretary of State for Scotland in 1988
"to identify, in the light of developments since the implementation of the Social Work (Scotland) Act 1968, options for change and improvement in child care law which would simplify and improve arrangements for protecting children at risk and caring for children and families in need.".
The Review Group reported in 1990.1 Its report contains 95 recommendations, not all of which would require legislation. A White Paper setting out the government's proposals for legislation is expected in the autumn. Another important current development is the Inter-Departmental Review of Adoption Law being carried out in the United Kingdom. In Scotland this is being handled by the Social Work Services Group of the Scottish Office. It is based on a series of four discussion papers and is still at the consultation stage. Other developments of potential relevance to reform of the law on child care and protection are the inquiry by Sheriff Kearney into matters relating to child care in Fife; the inquiry by Mr Skinner into certain aspects of residential child care; the review by Mr Finlayson of the role of reporters under the Social Work (Scotland) Act 1968; and the public inquiry under Lord Clyde into the circumstances surrounding some controversial child protection measures in Orkney. It remains to be seen whether these reviews and inquiries will result in recommendations for important changes in child law.
The need for a coherent approach
19.3 It seems clear that the public interest would be better served by a coherent rather than an incoherent approach to the reform of Scottish child and family law. This has been appreciated for some time. We had an observer at the meetings of the Scottish Child Care Law Review Group and we have been consulted regularly by the Social Work Services Group in connection with the adoption law review. We in turn have tried to keep the Social Work Services Group fully informed about the progress of our work in relation to the private law aspects of parental responsibilities and rights. We are aware that some of the provisions in the draft Bill attached to this report which touch on matters of child care or adoption law must be regarded as interim measures, pending the outcome of the other developments mentioned. There is no reason, however, why the various reform developments should not eventually be brought together into a coherent whole. 2 There is no reason why Scotland should not eventually have a comprehensive code of child and family law. How this might best be achieved will depend largely on the legislative opportunities available. One possible approach, however, would be (a) to enact the draft Bill appended to this report, along with our earlier report on divorce law reform (where we recommended a reduction in the length of the periods of separation required, with a view to reducing the incentive which currently exists to resort to the fault-based behaviour ground for divorce), (b) to enact the changes in child care law which already have been, and may soon be, recommended, (c) to enact any changes in adoption law which may eventually be recommended by the inter-departmental review, and then (d) to use the consolidation procedure 3 to put everything together. This would be more efficient and more productive of early benefits than attempting to put everything together first in one giant Bill which would, to a large extent, simply reproduce existing provisions, which might involve long delay, and which would be very demanding of Parliamentary time and resources.
Outline of a Scottish code of child and family law
19.4 In our Discussion Paper No 85 we set out in outline the contents of a possible consolidated Act. Some of the headings in it were provisional, pending the results of consultation. They can now be firmed up and it may be useful to set out a revised and re-ordered version. We would emphasise that this is just one possible scheme and that it is not intended to restrict the freedom of action of whichever Parliamentary counsel is given responsibility for the consolidation. A consolidation would present the opportunity to introduce some coherence of language and style and to eliminate many spent, transitional and overlapping provisions. Therefore, when we refer below to the incorporation of existing provisions we are not implying that they would be reproduced exactly as they are.
DRAFT OUTLINE OF A SCOTTISH CHILD AND FAMILY LAW CODE
BOOK I-THE LAW RELATING TO CHILDREN
TITLE I
CHILDREN, NATURAL PARENTS AND GUARDIANS
PART I
PARENTAGE
General rule.
(Take in definition of "parent" from clause 47(1) of draft Bill.)
Presumptions.
(Take in section 5 of Law Reform (Parent and Child) (Scotland) Act 1986.)
Use of samples of blood or other tissue.
(Take in section 6 of 1986 Act and section 70 of Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.)
Legal equality of children regardless of marital status of parents.
(Take in section 1 of Law Reform (Parent and Child) (Scotland) Act 1986, as amended by draft Bill.)
Declarators relating to parentage.
(Take in from section 7(1) and 7(5) of 1986 Act, as amended by draft Bill.)
PART II
PARENTAL RESPONSIBILITIES AND RIGHTS
(Take in clauses 1 to 6 of draft Bill.)
PART III
GUARDIANSHIP OF CHILDREN
(Take in clauses 7 and 8 of draft Bill.)
PART IV
ADMINISTRATION OF CHILDREN'S PROPERTY
(Take in clauses 9 and 10 of draft Bill.)
PART V
COURT ORDERS RELATING TO PARENTAL RESPONSIBILITIES AND
RIGHTS ETC.
(Take in clauses 11 to 16 of draft Bill.)
PART VI
PRIVATE INTERNATIONAL LAW
Domicile of children.
(Take in clause 45 of draft Bill.)
Choice of law determining child's status.
(Take in clause 46 of draft Bill.)
Jurisdiction in actions for declarator of parentage.
(Take in from section 7(2), (3) and (6) of Law Reform (Parent and Child) (Scotland) Act 1986.)
Jurisdiction in actions relating to parental responsibilities and rights and guardianship.
(Take in from Family Law Act 1986.)
Jurisdiction in actions relating to administration of child's property.
(Take in clause 18 of draft Bill.)
Choice of law on parental responsibilities and rights and guardianship.
(Take in clause 17-of draft Bill.)
TITLE II
LEGAL PARENTAGE
PART I
ADOPTION
(Take in from Adoption (Scotland) Act 1978, as amended (a) by draft Bill and (b) as a result of current interdepartmental review of adoption law.)
PART 11
OTHER CASES
(Take in sections 27 to 30 of the Human Fertilisation and Embryology Act 1990.)
TITLE III
FOSTERING OF CHILDREN
(Take in from Foster Children (Scotland) Act 1984.)
TITLE IV
LOCAL AUTHORITIES' POWERS AND DUTIES IN RELATION TO CARE
AND PROTECTION OF CHILDREN
(Consolidate existing legislation, with any amendments made as a result of the Review of Child Care Law in Scotland and other current inquiries.)
BOOK 11-THE LAW RELATING TO MARRIAGE AND DIVORCE
TITLE I
MARRIAGE
PART I
ENGAGEMENT TO MARRY
(Take in Law Reform (Husband and Wife) (Scotland) Act 1984.)
PART 11
FORMATION OF- MARRIAGE.
(Take in Marriage (Scotland) Act 1977, as amended by draft Bill.)
PART III
NULLITY OF MARRIAGE.
Grounds.
(Take in clause 21---ofdraft Bill.)
Actions relating to validity or nullity of marriage.
Competency.
(Take in clause 23 of draft Bill.)
Need for evidence.
(Take in section 8 of Civil Evidence (Scotland) Act 1988.)
Power to award financial provision in action for declarator of nullity.
(Take in section 17 of Family Law (Scotland) Act 1985.)
TITLE II
LEGAL EFFECTS OF MARRIAGE
PART I
GENERAL
Legal equality and independence of spouses.
(Take in clause 24 of draft Bill.)
PART II
PROVISIONS RELATING TO THE MATRIMONIAL HOME
Occupancy rights.
(Take in occupancy rights provisions from Matrimonial Homes (Family Protection) (Scotland) Act 1981, as amended by draft Bill.)
Protection from domestic violence.
(Take in matrimonial interdicts provisions from Matrimonial Homes (Family Protection) (Scotland) Act 1981, as amended by draft Bill.)
PART III
OTHER SPECIAL RULES
Household goods.
(Take in section 25 of Family Law (Scotland) Act 1985.)
Savings from housekeeping allowance.
(Take in section 26 of Family Law (Scotland) Act 1985.)
Policies of assurance.
(Take in from Married Women's Policies of Assurance (Scotland) Act 1880.)
TITLE III
DIVORCE
Ground.
(Take in section 1(1) and (2) of Divorce (Scotland) Act 1976, with amendments recommended in our report on Reform of the Ground for Divorce 1989.)
Defences and bars.
(Take in section 1(3) of Divorce (Scotland) Act 1976, as amended by draft Bill.)
Encouragement of reconciliation.
(Take in section 2 of Divorce (Scotland) Act 1976.)
Need for evidence and standard of proof.
(Take in from section 8 of Civil Evidence (Scotland) Act 1988, and section 1(6) of Divorce (Scotland) Act 1976.)
TITLE IV
PRIVATE INTERNATIONAL LAW
Jurisdiction in actions for divorce, declarator of marriage or nullity of marriage.
(Take in from Domicile and Matrimonial Proceedings Act 1973.)
Choice of law rules on validity of marriages.
(Take in clause 31(1) to (4) of draft Bill.)
Choice of law rules on legal effects of marriage.
(Take in clause 32 of draft Bill.)
Choice of law rule in divorce.
(Take in clause 31(5) of draft Bill.)
Recognition of foreign divorces, annulments and separations.
(Take in from Part 11 of Family Law Act 1986.)
BOOK Ill-FINANCIAL OBLIGATIONS IN RELATION TO CHILDREN AND SPOUSES
TITLE I
ALIMENT
(Take in from Family Law (Scotland) Act 1985, and clause 43 of draft Bill.)
TITLE II
FINANCIAL PROVISION ON DIVORCE
(Take in from Family Law (Scotland) Act 1985. Also take in rules on financial provision after foreign divorce from Part 1V of Matrimonial and Family Proceedings Act 1984.)
BOOK IV-LEGAL EFFECTS OF COHABITATION
(Take in clauses 33 to 42 of draft Bill.)
|
|
|