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Family law: still scope for reform

17 Jul 17

As the Scottish Law Commission prepares its Tenth Programme of Law Reform, a host of topics under the broad umbrella of child and family law would benefit from its attention

by Elaine E Sutherland

Much of modern Scots child and family law has been shaped by the work of the Scottish Law Commission. The statutory provisions on the capacity of children and young people, parental responsibilities and rights, many aspects of marriage, matrimonial property, divorce, aliment and financial provision on divorce and the first legislative response to domestic abuse all trace their origins to recommendations from the Commission. Sometimes it took many years for its proposals to find expression in legislation and the Commission’s recommendations were not always implemented in their entirety, but its influence is unmistakable.

As it prepares its Tenth Programme of Law Reform, outlining the work it will undertake in the future, the Commission has invited suggestions – by the end of July – on the topics it might include.

It is tempting to suggest that the Commission should return to an idea first advanced in its 1992 Report on Family Law (Scot Law Com No 135, 1992) and devise a Scottish Child and Family Code, but a project of that magnitude is probably too resource-intensive and long-term to be feasible in the current climate. Rather, this article highlights a number of discrete aspects of the subject, ranked in a very loose order of priority, that would benefit from review by the Commission.

In each case, the suggestion falls within the Commission’s declared aim “to improve, simplify and update the law”. All are concerned with the potential for improving or modernising the substantive law, and some present an opportunity for simplification, an imperative that has become more pressing in the light of increasing fiscal constraints on the legal system. As the number of self-represented litigants increases, greater reliance is placed on lay advisers, and lawyers and courts are called on to operate more efficiently, it becomes all the more important for the law itself to be simpler and more accessible. First, however, it is necessary to turn our attention to that ubiquitous topic, Brexit.

Implications of Brexit

The precise details of Brexit are, of course, unknown at the time of writing, but it seems likely that it will have implications for jurisdiction in child and family law cases and in terms of enforcement of rights and judgments. The Commission is well placed to carry out a scoping exercise of all the implications and to explore how each might be addressed, making recommendations for legislation that would be ready and waiting if the need arises.

Non-marital cohabitation

With the passing of the Family Law (Scotland) Act 2006, legislation finally addressed the Commission’s recommendations on statutory remedies for parting and bereaved non-marital cohabitants (Report on Family Law, paras 16.1-16.47). It is familiar territory that at least some of the ambiguity created by the provisions might have been avoided had the legislation followed the Commission’s formulation more closely, and that the Supreme Court provided some clarification in Gow v Grant 2013 SC (UKSC) 1.

Problems remain, however, and the following are amongst the issues that would benefit from review: the definition of cohabitants (Gutcher v Butcher 2014 GWD 31-610; Harley v Thompson 2015 Fam LR 45); the short time limit for raising an action after relationship breakdown and the lack of any discretion, on the part of the court, to waive it; and the interaction of the 2006 Act with the concept of unjustified enrichment (Courtney’s Executors v Campbell [2016] CSOH 136).

In addition, there is the provision dealing with the economic burden of child care (2006 Act, s 28(2)(b)). It is worth remembering that this matter was not considered by the Commission since other legislation in place at the time (and repealed by the time of the bill that became the 2006 Act) addressed it. That does not explain the curious nature of the backward-looking statutory formulation, which differs markedly from the similar provision that applies to parting spouses and civil partners (Family Law (Scotland) Act 1985, s 9(1)(c)).

For cohabitants, a much narrower group of children are covered, the purpose of making an award is not stated, there is no checklist of factors to be considered in making an award, the relevance of the defender’s resources is unclear and, while the statute does not mandate the award of a capital sum, that appears to be the way the provision is operating, limiting the scope for future variation.

The Scottish people have now become accustomed to the idea of legal consequences flowing from non-marital cohabitation and, in truth, many believed that such consequences applied before the 2006 Act came into force. In any event, it may be that there is greater public appetite for extending these consequences. Thus, it would be worth exploring whether cohabitants should be liable to aliment each other during the relationship (removing the anomaly with the public law position on entitlement to benefits), and whether the consequences at the end of cohabitation should be aligned more closely with those applying to marital breakdown (see further, Elaine E Sutherland, “From 'Bidie-In' to 'Cohabitant' in Scotland: The Perils of Legislative Compromise” (2013) 27(2) International Journal of Law, Policy and the Family 143).

Parental responsibilities and parental rights

The law on parental responsibilities and parental rights (PR&R) is very much a product of recommendations made by the Scottish Law Commission that found statutory expression in the Children (Scotland) Act 1995. On the whole, the recommendations were sound and the law works well, but three aspects of it would benefit from review.

Obstacles for non-marital fathers

The first is the automatic acquisition of PR&R by non-marital fathers, something they can now achieve simply by registering their paternity (1995 Act, s 3, as amended by the Family Law (Scotland) Act 2006). As a result, many more children are now owed parental obligations by two parents and many non-marital fathers have gained legal recognition.

Non-marital fathers can still face obstacles, however, if the child’s mother does not want them to be involved in the child’s life. First, the mother can refuse to permit the father to register. He will then be put to the trouble and expense of seeking a declarator of parentage (Law Reform (Parent and Child) (Scotland) Act 1986, s 7).

If he takes this path, the child’s mother can obstruct his progress further by withholding consent to DNA testing of the child (1986 Act, s 6) and the court has no power to order testing in the face of maternal opposition. While it may draw an adverse inference from her refusal (Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, s 70), and courts have done so on occasion (S v S 2014 SLT (Sh Ct) 165), such an outcome is far from guaranteed (Smith v Greenhill 1994 SLT (Sh Ct) 22).

Arguably, this stacking of the deck against non-marital fathers infringes their and their children’s right to respect for private and family life under the European Convention on Human Rights, article 8 (Schneider v Germany (2012) 54 EHRR 12), and the children’s rights under the United Nations Convention on the Rights of the Child, articles 2, 9 and 18. There are a number of ways to address this problem and the Commission would be well-placed to explore them.

How to assess welfare

A second issue worth revisiting is the assessment of the child’s welfare, the paramount consideration for a court when it is making a decision about PR&R (1995 Act, s 11(7)(a)). Unlike the position in many other jurisdictions, there is no extensive statutory checklist of factors for a Scottish court to consider in assessing welfare.

In its original form, the Act followed the Scottish Law Commission’s recommendation, rejecting such a checklist on the basis that it would be necessarily incomplete, might divert attention from other factors which ought to be considered and might result in judges taking a mechanical approach to decision-making (Report on Family Law, paras 5.20-5.23).

Subsequently, the 2006 Act amended the 1995 Act, s 11, adding two factors that the court must take into account when considering making an order in relation to PR&R – protecting the child from domestic abuse and taking account of the prospect of parental cooperation. Thus, what the current statute provides is a partial welfare checklist that highlights two relevant factors, but makes no mention of other considerations that might be of equal or greater relevance in a given case. Arguably, having a partial checklist is worse than having none at all.

Support for further guidance on welfare (best interests) comes from the United Nations Committee on the Rights of the Child. In its General Comment No 14 on the right of the child to have his or her best interests taken as a primary consideration (article 3, para 1), the Committee indicated that it “considers it useful to draw up a non-exhaustive and non-hierarchical list of elements that could be included in a best-interests assessment by any decision-maker having to determine a child's best interests” (CRC/C/GC/14 (2013), para 50). Clearly, that falls short of mandating a checklist and, in any event, General Comments are simply non-binding guidance to states parties to the Convention (International Law Association: Committee on International Human Rights Law and Practice, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies (London, 2004), paras 16 and 18). That guidance, however, when taken with the prevailing norm in other jurisdictions, suggests that the time has come to revisit the possibility of devising a welfare checklist.

Obstructed contact

The third area of PR&R that is in need of attention is one which presents an enormous challenge to courts around the world: the obstruction of the non-resident parent’s contact with the child by the resident parent. In the attempt to address the problem, the 2006 Act amended the 1995 Act, directing a court, when making an order that would require two or more relevant persons to co-operate with one another, to “consider whether it would be appropriate to make the order” (1995 Act, s 11(7D)). However, the statute does not offer the court any guidance on what, if anything, it should do when faced with parental intransigence. That is probably because the options are so limited, with imprisonment of the obstructive parent for contempt of court rightly being viewed as a last resort (SM v CM 2017 SLT 197).

These high-conflict cases bring additional difficulties, being particularly prey to continuations and delays, taking up a disproportionate amount of court time and resulting in considerable cost to individual litigants and to the public purse (see B v G 2012 SC (UKSC) 293 and SM v CM, above). Most troubling of all is the impact on the child concerned, whose welfare should be the paramount consideration. While the Inner House, in SM v CM, saw a role for the Scottish Civil Justice Council in addressing aspects of the problem, it may be that a review by the Commission of strategies adopted in other jurisdictions would provide further insights into how such cases can be resolved more efficiently and effectively.

Remedies for domestic abuse

The legislative foundation of protection from domestic abuse, the much-amended Matrimonial Homes (Family Protection) (Scotland) Act 1981, has been supplemented over the years by numerous statutes designed to provide remedies for intimate partners and former partners, and others threatened with harm or abuse from family members, acquaintances or strangers.

That is a creditable testament to the commitment, in Scotland, to addressing these pressing problems, but the result is a bewildering patchwork of legislation and remedies that makes the law more complex and less accessible than it needs to be. The Commission is ideally suited to undertaking a comprehensive review of the current law in order to render it simpler and more coherent and, thus, more accessible.

Solemnisation of marriage

At present, marriage between persons of different sexes may be solemnised in Scotland by certain religious or belief celebrants or by a district registrar or assistant district registrar (Marriage (Scotland) Act 1977, s 8). All ministers and deacons of the Church of Scotland qualify as celebrants, as do all celebrants of certain religious or belief bodies specified by regulation, with other such bodies being able to nominate individual celebrants. Thus, the law treats Church of Scotland and some religious or belief bodies more favourably than other such groups.

Religious and belief bodies must “opt in” if they wish to marry persons of the same sex, a compromise designed to respect religious freedom. However, the result is that same sex couples are not receiving equal treatment across the board, something that raises the possibility of a challenge to the legislation. In short, there is a rather complicated and discriminatory system in place for the solemnisation of marriage. That alone suggests it would be worth exploring whether the system could be simplified.

Marriage has been famously described as embodying elements of both status and contract and it has important legal consequences during the currency of the relationship, on breakdown and on the death of one of the parties. It is the only legal status that can be acquired by a religious process and, thus, is something of an anomaly in Scotland. In many other jurisdictions, marriage may only be solemnised through a secular process presided over by a representative of the state, signalling the separation of church and state. Arguably, the time has come, in multicultural Scotland, to adopt that approach and render marriage a wholly civil legal process (see further, Elaine E Sutherland, “Giving the state sole jurisdiction over marriage would simplify the law”, Journal, April 2013, 5). To do so would not remove religious or belief participation in marriage since couples would be free to have whatever kind of religious or belief celebration they wished in addition to the civil process.

By placing the solemnisation of marriage solely in the hands of the state, it would be in a position to oversee all marriages directly and would be better placed to identify cases of forced marriage and to offer the victims protection. There is no guarantee that civil marriage will always prevent forced marriage since, in the past, duress has been found to be present despite a civil ceremony (Mahmud v Mahmud 1974 SLT 599). However, public and official awareness of the possibility of coercion has been heightened over recent years and registrars are now very much more alert to it.

The “grounds” for divorce and civil partnership dissolution

In order to secure a divorce the pursuer must establish either that the marriage has broken down irretrievably or that an interim gender recognition certificate has been issued to one of the parties (Divorce (Scotland) Act 1976, s 1). Irretrievable breakdown can only be demonstrated by showing that one of four factual situations is present. Often referred to as the “grounds” for divorce, these are, in colloquial terms: adultery; behaviour; non-cohabitation for one year, accompanied by the defender’s consent; and non-cohabitation for two years. While irretrievable breakdown itself is a no-fault concept, there is no escaping the lingering association with fault, embodied in the reference to adultery and behaviour.

For reasons of history and definition (MacLennan v MacLennan 1958 SC 105), divorce founded on adultery is only available where sexual intercourse has taken place between the erring spouse and a person of a different sex, albeit same sex infidelity can be used to satisfy the behaviour ground. This limitation was applied expressly to same sex couples when the Marriage and Civil Partnership (Scotland) Act 2014 added the somewhat tortured s 1(3A) to the 1976 Act. Drawing this distinction based on the gender of the third party involved could be perceived as suggesting that same sex infidelity is of less consequence than infidelity with a different sex person, perpetuating a discriminatory attitude that equal access to marriage sought to eliminate. In addition, the law is more complex than it needs to be.

However, there is a more fundamental question: whether the time has come to remove the last vestiges of fault from divorce and civil partnership dissolution. The vast majority of them – in 2015-2016, some 94% of divorces and 96% of civil partnership dissolutions – proceeded on the basis of non-cohabitation (Civil Justice Statistics in Scotland 2015-16 (Scottish Government 2017)), suggesting that there is little public appetite for pursuing either on the basis of blaming one’s partner for the relationship breaking down. It would be worth exploring whether divorce should be simplified by removing adultery and behaviour as evidence of breakdown, with behaviour being deleted similarly in respect of civil partnership dissolution, and what, if any, further reform of the law in this area would render it better suited to modern needs.

Inheriting titles and honours

When the Family Law (Scotland) Act 2006 amended the Law Reform (Parent and Child (Scotland) Act 1986, s 1, the purpose was to abolish the status of illegitimacy: something the Commission viewed as “completing the task” of eliminating this “unnecessary and anachronistic” legal concept (Report on Family Law, para 17.4).
However, one group of children did not benefit from this reform – those who, but for their birth status, would inherit a title or honour (1986 Act, s 9(1)(c) and (ca)). Similarly, while the Succession to the Crown Act 2013 removed gender discrimination in respect of the monarchy, it had no effect on succession to other titles or honours, something the Succession to Peerages Bill, introduced recently in the House of Lords by Lord Trefgarne, seeks to remedy. While these remaining grounds of discrimination will affect very few people, they are out of place in modern, egalitarian Scotland (as, indeed, may be having an aristocracy) and the law would benefit from modernisation.

Concluding thoughts

There are other areas of the law which, while not strictly “child and family law”, often have an impact on family members and others close to the individuals affected – assisted dying and the binary nature of gender come to mind – and each is ripe for review. They are, however, distinct topics that warrant separate discussion.

The foregoing, meanwhile, are some of the child and family law issues on which the Scottish Law Commission might focus were it to resume its prominent role in a field where it has contributed so much. Such a course has much to commend it since the law would undoubtedly benefit from the application of its proven capacity for comprehensive and rigorous critical analysis.

Elaine E Sutherland is Professor of Child and Family Law, Stirling Law School, University of Stirling (elaine.sutherland@stir.ac.uk), Distinguished Professor of Law, Lewis and Clark Law School, Portland, Oregon (es@lclark.edu) and a member of the Family Law Committee of the Law Society of Scotland. This article represents her own views and does not necessarily reflect those of any of these bodies.

 

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