Meeting of the Parliament (Hybrid) 25 August 2020
I support amendments 9, 10 and 11, and I am grateful to Rhoda Grant for the constructive engagement that we have had on the subject. Those amendments make technical changes to the provisions that she inserted at stage 2.
Where the court is considering making an order that requires two or more persons to co-operate, amendment 10 will require the court to consider
“whether it is, or would be, appropriate”
to require co-operation. That is wider than sections 11(7D) and (7E) of the 1995 act, and new section 11ZA(3) of that act, which was added at stage 2 of the bill. It meets one of the aims of the bill, which is to
“further protect victims of domestic abuse”,
including children.
Turning to amendment 26 in the name of Liam McArthur, I reassure members that my view is that both parents should be fully involved in a child’s upbringing, as long as that is in the best interests of the child concerned. Currently, parents can ask the court for residence on an equal basis, and a decision will be made in which the welfare of the child is paramount, taking into consideration the views of the child, and with full consideration being given to arguments for and against shared parenting in the particular circumstances of the case.
Amendment 26 proposes residence on an equal basis where requested as the starting point for the court to work from. In my view, that cuts across the approach of the 1995 act, which encourages the court to arrive at a solution that best promotes the welfare of each child, according to their individual circumstances.
The amendment refers only to parents. Although most cases of this nature are between parents, they do not have to be; for example, grandparents may apply for an order. Amendment 26 does not take account of the full range of circumstances that exist in these types of cases. It does not address the stage in the proceedings at which any request must be made, whether the parent requires to be a party to the proceedings or whether it might be open to parents to make repeated requests. In the absence of any attempt to govern the procedure by which such requests might be made, there is a considerable risk of delay in court proceedings with issues arising at a late stage.
A section 11 case might be about contact or about administration of a child’s property and not about residence. Therefore, it might not be appropriate for the court to consider residence in every case, as the court might not have the information necessary to allow it to decide on such questions. The courts already apply a general principle that it will be normally beneficial for children to have an on-going relationship with both parents. The bill strengthens this position by requiring the court to consider in every case the effect of an order on the involvement of the child’s parents in bringing the child up.
I do not consider that amendment 26 is desirable. It cuts across the general principle of section 11 of the 1995 act that the welfare of the child is the paramount consideration. Given those reasons, I ask Liam McArthur not to move amendment 26.