Committee
Justice 1 Committee, 09 Nov 2005
09 Nov 2005 · S2 · Justice 1 Committee
Item of business
Family Law (Scotland) Bill: <br />Stage 2
I join committee members in thanking Alan Finlayson for his sterling work. He has made an immense contribution not only to the wider context of the bill but, I hope, to enabling disputes to be more amicably resolved in the future. Alan is almost uniquely qualified to address the problems, with his background of being a family law solicitor, the reporter to the children's panel and an honorary sheriff. He knows how painful and difficult these situations can be and he has seen them from different perspectives. It is important to bear in mind the fact that there are different perspectives and different demands, which make it difficult to achieve a balance.Alan Finlayson's work in drafting a parenting agreement is immensely helpful. However, it is fair to mention the huge support that he had from a steering group that comprised representatives of diverse interests, including Scottish Women's Aid, Families Need Fathers and family support bodies. They all brought their individual perspectives to the work and helped to shape and develop it. Clearly, parenting agreements will not solve every problem, but I hope that they will be regarded as a useful tool in trying to help parents to work out what is in the best interests of their children.Given what members have said, I believe that they share our purpose, which is to encourage parents, at or around the painful point of separation, to agree arrangements for the future care and welfare of their children. Like the courts, we want parents to be aware that they must put aside their differences and focus on what is in the best interests of their children.I accept that that is easier said than done, especially when feelings are running high. Members have referred to the point scoring that can go on and the way in which children can be used as pawns. That is why Alan Finlayson was so strongly of the view that a parenting agreement could not and should not take the form of a legal contract. I re-emphasise the view that he has expressed to the committee, which is that a parenting agreement"will simply be a record of the understanding that parents have reached".In other words, such an agreement is intended to be used by parents as a tool for making a little easier the initial process by which they jointly decide how the future care of their children can be arranged.There are concerns about what would happen if what is regarded as a flexible tool were given a legal status. We hope that a parenting agreement will be updated and amended as the children grow older, as their needs change and as their relationship with their parents develops. To make it a legally binding document that would need to be altered at every turn would introduce not only unnecessary complication, but unnecessary costs. The parties would not only have to reregister; if the agreement were a legally binding document, I presume that both parties would seek legal advice, which would mean getting lawyers involved. In addition, as Bruce McFee said, the fact that an agreement was legally binding might make some people hesitate to enter into it. Although they might be quite prepared to work out an agreement between themselves, the implications of the document having legal status might put them off getting involved or they might not wish to proceed without taking legal advice. Making a parenting agreement a legally binding document would mean that, at every stage along the way, lawyers would be involved and costs and complications would be introduced. The issue that the convener raised is about what the court would recognise. Stewart Stevenson has suggested that a parenting agreement should be a legal document or contract and I have said why we are concerned about that. In amendment 76, the convener proposes that the court "shall have regard to" any parenting agreement that exists. I understand what she is driving at, and a number of members have expressed sympathy for her view. Although I do not disagree in any way with her intention, her amendment is not needed and does not serve any purpose because the courts will consider such matters anyway.I refer to the letter that Alan Finlayson wrote to the committee, in which he said:"I think that the phrase I used in my evidence was that Agreements would have legal value, but not legal force. By that I meant that, in my experience, any judge would take a Parenting Agreement very seriously, and, if it had been breached, would want to know why."That is the proper context in which to consider parenting agreements. I would fully expect a court to consider a parenting agreement; indeed, I would be astonished if it did not do so. When courts consider orders relating to children, they always take into account both the existing arrangements for the child and the views of the parents, and it is right for the committee and for me, as minister, to put on record the fact that, if a parenting agreement exists, we would expect it to have relevance. However, I am sure that a court would consider such an agreement, although it would remain a matter for the court to determine whether it was the deciding factor. Certainly, to stipulate in the bill that parenting agreements are legally binding would be the wrong thing to do, and even going as far as the convener suggests would probably be unnecessary. Nevertheless, a clear message is going out about the value that we attach to parenting agreements and the contribution that they can make. It is recognised that courts take into account the best interests of the child. Therefore, we would expect the courts to take into account a parenting agreement because it would indicate what the parents intended for their children. Alan Finlayson's phrase about an agreement having legal value but not legal force is the best way to proceed. He said that a parenting agreement would be a piece of evidence before the court, to which the court might give considerable weight.
In the same item of business
The Convener (Pauline McNeill):
Lab
Good morning and welcome to the 36th meeting of the Justice 1 Committee in 2005. It would be helpful if committee members could do the usual and switch off m...
Mr Jim Wallace (Orkney) (LD):
LD
Yes, I am.
The Convener:
Lab
We have to do that every week.
Mr Wallace:
LD
I would not wish my vote not to be counted.
The Convener:
Lab
I welcome the Deputy Minister for Justice, Hugh Henry, and the officials who are assisting him today—Carol Duncan, Anne Cairns and David McLeish—to day 3 of ...
Section 14—Financial provision: valuation of matrimonial property
The Convener:
Lab
Amendment 17, in the name of the minister, is in a group on its own.
The Deputy Minister for Justice (Hugh Henry):
Lab
Section 14 of the bill amends section 10 of the Family Law (Scotland) Act 1985 by allowing the courts, on the application of either party, to consider and ta...
The Convener:
Lab
I probably know the answer to this question, but I would like to get it on record. Amendment 17—which seeks to deal with the case of Wallis v Wallis, on whic...
Hugh Henry:
Lab
Yes, it would apply either way.
Amendment 17 agreed to.
Section 14, as amended, agreed to.
After section 14
The Convener:
Lab
Amendment 18, in the name of the minister, is grouped with amendment 23.
Hugh Henry:
Lab
Amendment 18 is a technical amendment, which is required to update Scottish matrimonial legislation to take account of the Pensions Act 2004.In short, the 20...
Stewart Stevenson (Banff and Buchan) (SNP):
SNP
I have a technical question. I am broadly supportive of amendment 18, but to what extent does it provide protection for or cover pensions that are paid from ...
Hugh Henry:
Lab
That is probably a matter for the Pensions Act 2004 rather than the bill, as I suspect that the matter is reserved. However, not being an expert in that area...
Amendment 18 agreed to.
Section 15 agreed to.
After section 15
The Convener:
Lab
Amendment 19, in the name of the minister, is in a group on its own.
Hugh Henry:
Lab
The Law Society of Scotland brought to the Executive's attention the unfairness that can arise as a consequence of the failure of the Family Law (Scotland) A...
The Convener:
Lab
Amendment 19 was suggested by the Law Society; does that mean that the 1985 act has been defective all that time?
Hugh Henry:
Lab
I would hesitate to say that it has been defective all that time. We have identified potential for improvement.
The Convener:
Lab
Obviously, that is what I meant.
Mr Wallace:
LD
I hope that that does not apply to those of us who passed the 1985 act.
The Convener:
Lab
Indeed not. You are here to keep an eye on us, Jim.
Amendment 19 agreed to.
The Convener:
Lab
Amendment 20, in the name of the minister, is grouped with amendments 22, 24 to 27, 41 and 29 to 31.
Hugh Henry:
Lab
Amendment 20 deals with the concept of illegitimacy, which many commentators and other people throughout Scotland, including the Law Society, desire to see r...