Family Justice Modernisation Strategy

Introducing a presumption that children benefit from contact with their grandparents.

Opinion in the consultation was strongly divided on this.

The Scottish Government considers that any provision could cut across the key principle in the legislation that the welfare of the child is the court’s paramount consideration. In addition, making specific provision in respect of grandparents, would also raise questions on whether there should be specific provision for other family members.

However, one of the factors included in the Children’s (Scotland) Bill that the court must consider, when making an order under section 11(1) of the 1995 Act, is the effect that the order might have on the child’s important relationships with other people.

Replacing the term “contact” and “residence” with a new term such as “child’s order”.

In response to the consultation some argued that the current terms could suggest that one parent has a better relationship with the child than the other. In England and Wales, the terms “contact” and “residence” were replaced in 2014 with the term “Child Arrangements Order”. The rationale for this was to encourage parents to focus on their child’s needs, rather than their own

rights. In New Zealand and Australia, the term “parenting order” is used.

The Scottish Government consider the terms “contact” and “residence” have been in use for some time, have gradually gained acceptance and are useful descriptors of the orders in question. Therefore, the Scottish Government is not proposing any changes.

Legislative presumption in favour of shared parenting or specifying that the court should not presume that a child benefits from both parents being involved in their lives.

There were very mixed views on this area.

The Scottish Government’s view is that both parents should be fully involved in their child’s upbringing as long as that is in the best interests of the child. The Scottish Government appreciates there are cases where it is not in the child’s best interests for both parents to be fully involved, or involved at all, in their upbringing.

Any presumption may cut across the fact that the welfare of the child is the paramount consideration. As a result, the Scottish Government considered no legislative presumption on shared parenting should be made.

One of the factors included in the Children (Scotland) Bill that the court must consider when making an order under section 11(1) of the 1995 Act, is the effect that the order might have on the involvement of the child’s parents in the child’s upbringing.

Step parents parental responsibilities and rights agreement.

The proposal here is that a step parent could obtain PRRs by registering an agreement with the parent(s), without the need to go to court. The proposal reflects the fluid nature of some families. There is an agreement of this nature in England and Wales.

The Scottish Government are not proposing to introduce a step parents parental responsibilities and rights agreement for a number of reasons:

• the proposal may not take full account of the views of the child on whether the step parent should have PRRs;
• a PRRs agreement for step parents could mean both parents as well as a step parent having PRRs. This may not be in the best interests of the child;
• there would need to be a clear definition of who would be regarded as “step parents” for the purpose of being eligible to complete and register an agreement (e.g. whether the step parent would have to be married or in a civil partnership with a biological parent to obtain PRRs in this way or whether cohabitants could do so too); and
• a step parent can already apply to the court to obtain PRRs.

Removing the term “parental right” from the legislation.

The term used in Scotland is “parental responsibilities and rights”. Under section 2 of the 1995 Act, a person has some parental rights to enable them to fulfil their parental responsibilities. The consultation noted that the term used in England and Wales and in EU legislation is “parental responsibility.”

The response by the Children and Young People’s Commissioner to this question is of particular interest. He said on the question of whether the term “parental rights” should be removed from the 1995 Act:

“No. Parents are given rights to enable them to meet their parental responsibilities and help them exercise their children’s rights on their behalf, as outlined in Article 5 of the UNCRC. Every child has the right to their parents being involved in their upbringing, where it is safe for them to do so and states have an obligation to provide parents with support in doing this, as outlined in Article 18 of the UNCRC. The term parental rights can be important to ensure some vulnerable parents receive the support they need

to fully participate in their child’s upbringing.

The concept of parental rights can be important in ensuring that parents have access to the support they are entitled to. An important example is parents with learning disabilities, whose rights to support when raising their child are outlined in the UN Convention on the Rights of Disabled People Article 18.

There is significant case law that highlights the importance of the concept of parental rights in these situations.”

Other consultation responses also noted that the term “rights” may be helpful for parents and others when dealing with an emanation of the state.

The Scottish Government considers that the concept of parental rights can be important in ensuring parents have access to the support they are entitled to.

Backdating the legislation allowing a father to be given parental responsibilities and rights by jointly registering a birth with the mother to pre 2006.

In the Family Law (Scotland) Act 2006, the law was changed so that fathers who jointly register the birth obtain PRRs. This change was not made retrospective. Therefore, it is possible that an unmarried father can have PRRs for one child (born after the law was changed) and not for another (born before the law was changed) even though he jointly registered the birth of both of them.

The Scottish Government considers it would be inappropriate for parents who had registered the birth of their child on the basis of one set of legal circumstances then to find that subsequent legislation had materially changed those legal consequences.

In addition from 2022 all fathers who have jointly registered the birth of a child with the mother will have PRRs since this is 16 years from the 2006 legislation.

Removing PRRs by the criminal court of a person convicted of a serious criminal offence.

The Scottish Government is not taking this forward as there are a number of potential drawbacks to the proposal, including:

• there may be cases where a child wishes a parent to still be involved in the child’s life, despite any conviction for a serious criminal offence;
• the criminal court is unlikely to be in a good position to obtain the views of the child;
• if the child had to appear in a criminal court, this could have a negative impact on the child; and

• it is not clear who would ask the criminal court to remove PRRs.

Parental responsibilities and rights for all fathers.

Currently all mothers automatically get PRRs but this is not the case for all biological unmarried fathers or for second female parents. Responses were divided on this topic.

The Scottish Government is not proposing to give all fathers PRRs for a number of reasons:

• a small percentage of unmarried fathers don’t already get PRRs automatically, where the father is not registered as such at birth. There may be good reasons why a mother decides not to jointly register the birth of a child such as having been the victim of domestic abuse or violence at the hands of the father or where the father has shown no interest in helping to bring up the child. Where a father believes that it is in his child’s best interests for him to have PRRs, he can ask the court to give them to him. This means a vulnerable mother does not have to go through a court process to remove the father’s PRRs.
• retaining the current position means that a disinterested father who is not married to the mother of the child would not have to consent to a registered change in the child’s name. Currently, any person whose birth is registered in Scotland can apply to NRS to have a change of name recorded. If the person is under 16 years of age, the application must be made by a person with parental responsibilities for that child, namely:
• where only one parent has parental responsibilities in relation to the child, that parent; or
• where both parents have such responsibilities in relation to the child, both parents; or

• where neither parent has such responsibilities, any other person who does.
• if a child was conceived as a result of rape or incest then the mother could choose not to name the father on the birth certificate and he would then not get PRRs. This could benefit both the mother and the child concerned.
• there could be practical difficulties for registration purposes if a mother does not wish to say who the father of the child is.
• a father who has not previously been involved in a child’s upbringing may wish to become involved when they otherwise would not have done. This could affect the welfare of the mother and may not be in the best interests of the child.

Compulsory joint birth registration.

The consultation sought views on whether joint birth registration should be made compulsory so that the person registering the birth would be obliged to name both parents. Provision of this nature has been made in England and Wales but has not been commenced. Other countries such as New Zealand and Australia have introduced compulsory joint birth registration.

The Scottish Government is not proposing to introduce compulsory joint birth registration for a number of reasons:

• some stakeholders noted in their consultation responses that joint birth registration could be potentially unworkable in some instances, for example where the father is not known or is uncontactable, or in cases of rape.
• it could present a barrier to registration which would be a breach of children’s rights under UNCRC Article 7 to be registered immediately after birth.
• there are already mechanisms for the other parent to add their name at a later date either by completing a form60 or seeking a court order.

Amending section 22 of the Family Law (Scotland) Act 2006 which provides where a child is deemed to be domiciled.

This question was included after written evidence was submitted to the Justice Committee when the Committee carried out post-legislative scrutiny of the 2006 Act.

This is a technical area where consultees did not express a strong desire for change.

Compulsory DNA testing in parentage disputes.

Section 70 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 already provides that the court may draw from a refusal or failure to consent to the taking of a DNA sample from a child such adverse conclusions as it seems to it to be appropriate. This seems sufficient.

Removing the presumption that the husband of the mother is the father of the child.

Opinion was very evenly split on this.

The Scottish Government has decided not to remove this provision as:

• no major concerns about this presumption have been raised; and
• removing this presumption may have unintended consequences on other areas in relation to children and families such as succession.

Changes to section 11(7A) to (7E) of the 1995 Act.

The consultation sought views on whether changes are needed to these sub-sections. These sub-sections provide that the court must have regard to the need to protect the child from abuse when considering a case under section 11.

The Scottish Government considers it important to retain these provisions to protect victims of domestic abuse.

Cases under section 11 of the 1995 Act only being heard by the sheriff court (and not by the Court of Session as well).

This was included in the consultation as a way of reducing costs and making justice more local. However, the Scottish Government considers that:

• the vast majority of contact cases are now heard in the sheriff court;
• if a person on legal aid seeks to raise a case in the Court of Session, SLAB would ask why it was being raised there

and not in the sheriff court; and

• some cases (e.g. if the exact whereabouts of the child is not known) may have to be raised in the Court of Session.