Committee
Justice 1 Committee, 23 Nov 2005
23 Nov 2005 · S2 · Justice 1 Committee
Item of business
Family Law (Scotland) Bill: <br />Stage 2
I support the other amendments in the group and wish to clarify that the intention behind amendment 83 is not to go into reserved matters or to consider the Human Fertilisation and Embryology Act 1990. Amendment 83 does not seek to challenge the basis of section 21(2)(b), which is that future child-rearing costs should not normally be claimed by one cohabitant against the other if the child is not a child of both cohabitants. The amendment seeks only to introduce a limited exception in a situation that is in reality indistinguishable from the basic rule, but which is distinguishable by a legal quirk. The committee discussed this change at some length. It is complicated, but we need to consider the protection of children of couples.Section 21(2)(b) allows one ex-cohabitant to claim future child care costs from the other ex-cohabitant when they had a child together. If a same-sex couple have a child together, the problem is that they could not access the section without the amendment. The couple can have a child together, but not genetically. They can do it by accessing infertility treatment, although, at present, only one of the couple will be the legal parent. Amendment 83 would not affect that rule, but it goes behind the law to the reality that the couple chose to create a life together and both undertook lifelong obligations to the child. The one who is not legally the parent should not be allowed to step away from those obligations. The bill is about parental rights but, importantly, it is also about parental responsibilities. The amendment does not give same-sex couples any benefits over opposite-sex couples. It does not allow a claim against a person who moves in with a partner who already has a child. Amendment 83 tries to extend the scope of section 21(2)(b) beyond "parent". If it is agreed to, the section would effectively read that an order can be made to include the future sharing of any economic burden of caring for a child in cases in which both the cohabitants are its parents and—the extension in amendment 83—in cases in which both the cohabitants are not the parents yet the child has been brought into existence by a mutual decision of both cohabitants. Amendment 83 says that there are others, as well as parents, who should share child-rearing costs. There is a similarity to a provision on married couples in the Family Law (Scotland) Act 1985, section 9(1)(c) of which provides for a sharing of future child-rearing costs by parents and step-parents, but that sharing does not convert the step-parent into a parent for any purpose. We need to consider the issue from the point of view of the child rather than from any other point of view. Amendment 83 is crucial to put same-sex couples on the same basis as opposite-sex couples. Amendment 83 is justified because same-sex couples create families in different ways from opposite-sex couples, for whom section 21 is primarily designed.
In the same item of business
The Convener (Pauline McNeill):
Lab
I open the 38th meeting in 2005 of the Justice 1 Committee and welcome to the committee Brian Adam and Fergus Ewing, who are joining us for the stage 2 debat...
Section 18—Meaning of "cohabitant" in sections 19 to 22
The Convener:
Lab
Amendment 34, in the name of Brian Adam, is grouped with amendments 35 to 38.
Brian Adam (Aberdeen North) (SNP):
SNP
This has been a very long and difficult process. It has gone on not just for a few weeks in the committee, but for many years. There have been many arguments...
The Convener:
Lab
You talked about equity in the treatment of cohabitants and married couples. Do you think that the bill provides the same protection for both? There are diff...
Brian Adam:
SNP
I would be delighted to have those detailed differences pointed out to me, as that is certainly not the view of many of those who submitted evidence. I ackno...
The Convener:
Lab
I wanted you to clarify that point, because I understand that you have an objection in principle to section 18, which is why you want to remove it. You are r...
Stewart Stevenson (Banff and Buchan) (SNP):
SNP
I have been impressed by the breadth and depth of the arguments that Brian Adam deploys. I have a great deal of sympathy with many of the points that he make...
Mr Bruce McFee (West of Scotland) (SNP):
SNP
In response to Stewart Stevenson's comments, I say that I hope that marriage and relationships are founded on something a bit stronger than the tax consequen...
The Convener:
Lab
I support the Executive's position on the bill and have done from the beginning. However, I have some detailed questions about its provisions. In the 21st ce...
Marlyn Glen (North East Scotland) (Lab):
Lab
I was very pleased that the committee's stage 1 report on the bill was accepted by Parliament. Amendments 34 to 38 would change the bill fundamentally. In ac...
Brian Adam:
SNP
I was quoting evidence from the Free Church of Scotland.
Marlyn Glen:
Lab
In that case, I do not like your choice of quotation.
Brian Adam:
SNP
I am not suggesting that the committee, or indeed the Executive, is going out of its way to give effect to that comparison; it was lodged as part of the evid...
Marlyn Glen:
Lab
I am glad to hear that you do not hold to that comparison yourself. There are lots of different kinds of families in 21st century Scotland, and it is importa...
Mrs Mary Mulligan (Linlithgow) (Lab):
Lab
I support the status of marriage. It is unfortunate that I have to say that at the beginning of my comments, because I have heard nothing from committee memb...
Mr McFee:
SNP
I hear what you are saying. I read the results of the social attitudes survey and you are right to say that a number of people—the majority, I think—believe ...
Mrs Mulligan:
Lab
It is important that we are honest with people. The committee agreed that, once the bill is passed, we must ensure that information is given to people about ...
Mr McFee:
SNP
Correct me if I am wrong, but I think that, at our last meeting, we changed the wording of section 18(4)(a) to say that the court should have regard not to"t...
Mrs Mulligan:
Lab
I did not think that we had deleted that paragraph, but I stand to be corrected.
The Convener:
Lab
We did not delete section 18(4)(b). We agreed to change the wording, so that the section would no longer talk about people being dependent. I cannot remember...
Mr McFee:
SNP
Did we change "cohabitation" to "relationship" in section 18(4)(a)?
The Convener:
Lab
Part of the problem is that, last night, we did not have the Official Report of our previous meeting to refer to.
The Deputy Minister for Justice (Hugh Henry):
Lab
My understanding is that the wording of section 18(4)(b) was changed to:"the nature and extent of any financial arrangements subsisting, or which subsisted, ...
The Convener:
Lab
That is correct. Is that the clarification that Bruce McFee was looking for?
Mr McFee:
SNP
I am sorry to do this in the middle of another member's contribution, but I think that it is important—
The Convener:
Lab
It is up to Mary Mulligan to accept your intervention.
Mrs Mulligan:
Lab
I will accept the intervention if Mr McFee can be brief.
Mr McFee:
SNP
I am obliged, as I realise that this is an interruption to your contribution.My understanding is that in section 18(4)(a), the words"the length and nature of...
Mrs Mulligan:
Lab
It is important to clarify the point. I raised the matter today partly because there is still some uncertainty about it. It will be helpful to clarify the si...