Hansard

There can be few subjects as important for our Parliament to deal with as family law. The family is all-important to the welfare of society and, especially, of the children who will be the society of the future. This Parliament provides the opportunity at long last to modernise important aspects of family law in Scotland.

The white paper that we are publishing today sets out our proposals and invites views on a limited number of issues. Our white paper is called "Parents and Children", which signals that the welfare of children is at the heart of our concerns.

Children today live in families that can take many different shapes. We do not need psychologists to tell us that the relationship with parents is the single most formative influence on children's lives. Many children today live with one parent, or in a family that has undergone change. The adults who care for children may not be their birth parents. The relationships that adults have with each other and with the child are crucial for the child's welfare. The framework of the law must reflect that and be as supportive for children as possible.

In that context, I have said, and will stress again, that we support marriage as the most recognisable and widely accepted way of signalling to society a couple's commitment to each other and to their life together as parents. Marriage remains a central concept of our family law and nothing in our proposals will change that. However, we must also take into account the fact that many couples choose not to marry but to live together. In such circumstances, the important factor is the stability of the relationship in which they bring up children.

Against that background, I will comment on the main proposals in our white paper. The paper begins with the important question of parental responsibilities and rights. It is crucial that children know who has responsibility for them and who has the right to intervene in their lives. It is crucial that parents know in what ways they are responsible for their children. It is crucial that the various organisations that come into contact with a family are clear about those rights and responsibilities.

That clarity is not available at present. We estimate that some 18,000 children a year are born to couples who are not married, but who take the important step of registering the child's birth together. In terms of financial responsibility, the law is quite clear: the father and mother both have an obligation to support the child. However, in other areas—for example decisions on important matters such as the child's education or medical treatment, or where the child should live—many people, including the parents themselves, probably do not even realise that under the Children (Scotland) Act 1995 the unmarried father has no parental responsibilities and rights, even if he is registered as the child's father.

Until 1995, unmarried fathers could acquire parental responsibilities and rights in two ways: by court order or by marriage to the mother. The Children (Scotland) Act 1995 added a third way—an agreement made with the mother and registered in the books of council and session. That provision has had very little impact. Only 335 agreements were made in 1999, for a possible total of 18,000 children of unmarried parents who showed sufficient commitment to register jointly the birth of the child that year.

Clearly, there is a need for some change so we propose that parental responsibilities and rights should follow automatically on joint registration of the birth. Fathers who have registered the birth of a child jointly with the mother have already shown commitment to the child. They need to be given the formal parental responsibilities and rights that go with their commitment and to be encouraged to take them seriously.

Contrary to what we suggested when I made a statement in January, we no longer propose to apply that retrospectively to unmarried fathers whose children were registered before the new provisions come into effect. We have listened to those who said that it was wrong to change retrospectively the status of any child or any unmarried father. The mother may have entered into joint registration some years previously with no expectation that that would result in parental responsibilities and rights for the father. Changing those arrangements halfway through childhood would be unsettling for many families. What we propose now will not change the status of any existing child. However, we still think it right to consult on our original proposal, so that all the arguments are out in the open, and therefore it is included in the white paper as a consultation question rather than as a proposal.

We propose that step-parents should be able to acquire parental responsibilities and rights by agreement with those who already have such rights. The fine details still require consideration, but briefly, we propose to confine those agreements to married step-parents. Marriage demonstrates a legal commitment to the partner who is the parent of the stepchildren in question. That is essential before parental responsibilities and rights can be granted to an otherwise unrelated adult. Other new partners can still seek such rights through the courts.

Domestic abuse is an area to which the Executive attaches high priority and to which considerable attention and resources are already being devoted. There is no place for abuse in a modern Scotland. We are determined to do all that we can to reduce and ultimately eradicate such shameful behaviour, which has a devastating effect on the lives of those who are affected by it. To that end, the Scottish Partnership on Domestic Abuse is completing its recommendations, which will include a national strategy, action plan, good practice guidelines and service standards. Those recommendations will be published in October. In addition, we are carrying out a review of legislation on stalking and harassment.

Our approach in the white paper is to build on the framework of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 by extending the protections that are available under that act to spouses—whether married or separated—divorcees, cohabitants and ex-cohabitants. We propose that a power of arrest should be attached to interdicts for three years, where it is requested. We also propose a clearer and fairer regime for occupancy of the shared home.

I understand that the Justice and Home Affairs Committee's proposals go further than that. However, our objectives are the same: to provide improved and adequate protection. We have started dialogue with the committee's reporter, Maureen Macmillan. I expect full and open discussion to continue as the proposals of the committee and the Executive are developed, so that we can find the best way forward.

Whatever personal views we may hold on the matter, it is a fact that one third of marriages end in divorce. The Parliament must ensure that the workings of the law do not add to the pain that inevitably results from divorce. In particular, we must ensure that the law does not encourage adults to behave in ways that increase the damage to their children. Our proposals are aimed at changing the behaviour of parents who have already decided to divorce.

Couples should enter marriage with the highest seriousness, and we do not intend to make it easier to end marriage by divorce. However, when divorce is inevitable, there is every reason why that painful business should be done with as little damage as possible to the children.

In Scotland, most divorces of couples without children proceed on separation grounds. However, the position is different for couples with children. There has been a growing tendency for couples with children to resort to the accusation of unreasonable behaviour to constitute the grounds for divorce. In 1998, which is the latest year for which full statistics are available, 54 per cent of divorces of couples with children proceeded on the grounds of fault.

Accusations of fault may be necessary where there is domestic abuse or other unacceptable behaviour for which a rapid solution is needed. We understand that the use of the fault grounds may also be seen as a means of achieving a divorce more quickly than separation would allow, to avoid prolonging the agony and uncertainty. Whatever the reason, the use of the fault grounds does not influence the court's attitude to either financial provision or the care of children. Financially, the law is designed to achieve a clean break. However, the reforms in the Children (Scotland) Act 1995 were designed to ensure that both parents retain their involvement in their children's upbringing after separation or divorce. Therefore, there is nothing to be gained from using the fault grounds except speed. We believe that the use of the fault grounds to speed up divorce may exacerbate unnecessarily the acrimony surrounding divorce, with detrimental effects on children.

That is why we support the recommendation of the Scottish Law Commission in 1989 that the separation periods should be shortened. The commission consulted, and the Scottish Office did so again in the paper "Improving Scottish Family Law". The majority of respondents supported proposals to reduce the period of separation from two years to one year with consent, and from five years to two years without consent. The intention of the change is to encourage couples with children to wait until a year's separation has elapsed rather than to proceed on fault grounds. The fault grounds will remain available for those who genuinely need a quick divorce, although the white paper asks whether those grounds should be merged into a single behaviour ground.

We believe that a year's separation will usually be sufficient to establish that a marriage has broken down irretrievably. Where one spouse resists that, a further year is long enough to confirm the breakdown. It is inconceivable that couples who would otherwise stay together will be encouraged to separate as a result of the proposed changes.

I must emphasise that the aim of the changes is not to increase the number of divorces, nor to trivialise marriage, but to deter couples from rushing into allegations of fault to accelerate the process of divorce. That should cool the temperature of a separation during a time that is inevitably difficult for children.

We very much hope that couples who wait a year will also explore fully the possibility of reconciliation. We would certainly encourage that. However, if all attempts at reconciliation fail, the year will also allow time for proper arrangements to be made for financial provision on divorce and for both parents to continue to be involved in the care of their children.

We expect that the overall number of divorces will remain the same as at present. We expect an initial increase immediately after the provisions come into effect, as some people who are waiting to meet the separation requirements will do so earlier. However, that initial increase should be followed by a compensating decrease in numbers of divorces over the following years.

I have suggested that the year's separation could be used to explore the possibility of reconciliation, or for mediation to sort out disputes. It is very important that properly trained counsellors and mediators are available to assist families in such circumstances. When divorce becomes inevitable, each party will need legal advice and representation. That said, there is an important role for service provision by the voluntary sector and for lawyers as mediators, and a number of organisations provide information, advice, counselling and mediation with the support of public funding.

Mediation continues to be eligible for funding as a legal aid outlay. In addition, voluntary organisations that support families receive local authority and Executive funding, as well as charitable support. As part of our commitment to reconciliation and avoiding acrimony, our funding of organisations that provide counselling for couples and family mediation has increased by 40 per cent between 1999-2000 and the current financial year, from £512,000 to £718,000. Further increases are in prospect. Through discussions with the relevant organisations, we are developing a strategy to put their funding on a more secure footing. We will underpin that in due course with a more targeted statutory power.

We will also expect local authorities and grant-giving bodies to continue to play a part in supporting those organisations. There is no point in the Executive increasing funding if other funders simply withdraw in response. There is, and will continue to be, a role for mixed provision and the role of the local authority will be very important in ensuring that area-based needs are met.

I hope that I have made it clear that our primary concern is the welfare of children and how each of our proposals will contribute to that end. To explain that more fully, I have offered meetings with the main Churches and discussions with other faith groups through the medium of the Scottish Inter Faith Council. I hope that those meetings will lead to greater understanding and acceptance of the need for change. We are happy to meet other groups. In a vital area such as family law, consensus is desirable; however, even if that cannot be achieved, it is important that everyone has their say.

The white paper sets out in detail other family law improvements that will: make technical amendments to the law on marriage; provide some improvement in the financial situation of cohabitants on separation or bereavement; and modernise certain other aspects of Scottish family law.

One of our modernisation proposals received widespread support from members when I announced it on 20 January, so I will mention it again. We will end the status of illegitimacy in Scotland. Although the status has no practical effect—we plan to remove the terminology from the statute book—its removal sends a powerful signal about the importance of every child in our nation.

I am proud to take this step forward in the reform of Scottish family law. Today's publication of "Parents and Children" marks one more milestone on the journey.