Hansard

There are a number of technical amendments in the group. I hope that the committee will bear with me as I go through them. Amendment 3 addresses a point that was made in written evidence on the bill that was submitted to the committee by the Faculty of Advocates. Section 3 of the Children (Scotland) Act 1995 presently provides that the mother of a child has parental responsibilities and rights whether or not she is married to the father of that child. The bill already makes some amendments to the Children (Scotland) Act 1995, including to section 3, to reflect that civil partnership will be available to mixed-sex couples. In particular, fathers currently obtain parental responsibilities and rights if they are married to the mother. The bill extends that to cases in which the father obtains PRRs if he is in a civil partnership with the mother. The Faculty of Advocates suggested a further amendment to section 3 of the 1995 act. It stated: “there should, for consistency, also be added the words ‘or entered into civil partnership with’ before ‘his father’. Alternatively, the words ‘whether or not she is or has been married to his father’ could simply be deleted.” After consideration, we concluded that the addition of language would indeed provide helpful consistency. It will also provide clarity and put it beyond doubt in the legislation that the mother of a child has parental responsibilities and rights whether or not she is married to, or is in a civil partnership with, the father. The bill will extend that to cover cases in which the father is in a civil partnership with the mother. The Scottish Government believes that, generally, children benefit from both parents being involved in their life. However, there are some cases in which the father is disinterested or there has been domestic abuse or violence. Provision to ensure that most fathers gain PRRs but a small minority do not reflects the realities that we face. Amendment 7 ensures parity of treatment for marriages and civil partnerships when it comes to the registration of court decrees that bring a relationship to an end. For marriages, section 28A of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 provides for decrees of dissolution and declarators of nullity to be registered in the register of divorces that is kept by the registrar general. However, the equivalent provision for civil partnerships—which is to be found in section 122 of the Civil Partnership Act 2004—provides only for decrees of dissolution to be registered in the register of dissolutions. There is no provision for the registration of declarators of nullity. Declarators of nullity are rare. The justice statistics show that there are no more than two a year in relation to marriage and civil partnership. However, they can be issued when one of the parties was, or both of the parties were, not eligible to enter the relationship; when the parties were eligible but one or both of them did not consent to the formation of the relationship; or when one of the parties who was capable of consenting to the relationship being formed did so only because of error or duress. Our view is that declarators of nullity in relation to marriage and civil partnership should be treated in the same way. Amendment 7 will achieve that parity of treatment in relation to registration by amending section 122 of the 2004 act so that the register of dissolutions maintained by the registrar general also covers declarators of nullity of civil partnership. 09:30 Amendment 8 makes provision on the jurisdiction of the sheriff court in relation to declarators of nullity of civil partnership. At present, only the Court of Session has jurisdiction to deal with court action for declarators of nullity of civil partnership. The relevant provisions were put in place in 2004, when civil partnership was established. At that time, that was also the position for declarators of nullity of marriage. However, things have now moved on in relation to declarators of nullity of marriage, in relation to which either the Court of Session or the sheriff court can now have jurisdiction. Amendment 8 extends jurisdiction for hearing declarators of nullity of civil partnership to the sheriff court, in line with the position in relation to marriage. Amendment 9, which is the final amendment in the group, changes a reference to “same sex” in the Civil Partnership Act 2004 to reflect the fact that mixed-sex civil partnerships will be introduced in Scotland. Section 237 of the 2004 act contains supplementary provisions on the recognition of overseas dissolutions. More specifically, it provides the Scottish ministers with the power to make regulations that modify the normal rules on recognition of overseas dissolutions in the situation in which a civil partner is domiciled in a jurisdiction that does not recognise legal relationships between two persons of the same sex. The same issue is liable to arise with mixed-sex civil partnerships. A civil partner in a mixed-sex relationship might not be able to obtain a dissolution where they are domiciled, because the law of that country does not recognise mixed-sex relationships other than marriage. Accordingly, section 237 of the 2004 act requires amendment to make it possible for regulations to provide for a corresponding modification of the normal rules in that situation. That will provide parity of treatment between same-sex and mixed-sex civil partners. I move amendment 3. Amendment 3 agreed to.