A report published by the Scottish Parliament’s Justice Committee revealed that a wholesale review of how Scotland’s family law operates may be needed.
This is a result of the concerns raised about how some aspects of the Family Law (Scotland) Act 2006 may have become ineffective. The committee gathered evidence from legal practitioners, academics and representatives of different groups that made Family Law a part of their scrutiny work post-legislative.
The focus is on parental rights and responsibilities and cohabitation. The committee heard a range of concerns regarding the current provisions.
Justice Committee Convener Christine Grahame MSP outlined some concerns over the new rights for cohabitants that was enshrined in the 2006 Act.
According to her, “the legislation is insufficiently clear,” resulting in legal professionals sometimes struggling to tell separating parties what the provisions have in store for them.
Marriage, civil partnership and cohabitation laws have also significantly changed in recent years that the extent of the recent laws is now lacking purpose and coherence.
On parental rights and responsibilities, Grahame says that legislation in child law calls for a wholesale review because it is beginning to show its age. “It appears that the current legislative framework can give rise to adversarial disputes which can make a bad situation worse.” This happens whether it is applied on debate or how the law is framed.
The way the Scottish legal system handles family law cases that involve children often raises conflicting and strong views. This is why focus should be made on the application of the law and the mechanism used in dispute resolution.
Grahame added that increased use of mediation would greatly benefit family law cases involving a child. If possible, cases should be heard by specialist family law sheriffs as well.
National Manager of Families Need Fathers Scotland, Ian Maxwell, recognises the importance of the Scottish Parliament’s Justice Committee’s report as a starting point for the modernisation of family law.
