15 September 2005

S2M-3233 Family Law (Scotland) Bill: Stage 1

Scottish Parliament

Thursday 15 September 2005

[THE PRESIDING OFFICER opened the meeting at 09:15]

Family Law (Scotland) Bill: Stage 1

The Presiding Officer (Mr George Reid): Good morning. The first item of business is a debate on motion S2M-3233, in the name of Cathy Jamieson, on the general principles of the Family Law (Scotland) Bill.


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Stewart Stevenson (Banff and Buchan) (SNP): Today we debate the role of the state in supporting families and family structures in modern Scotland. Stability and comfort come through enduring relationships, with the finance and the leisure time with which to enjoy them. Our communities as a whole share the benefits derived by individuals in such stable and comfortable relationships. By contrast, chaos and lack of stability in families lead to lack of social cohesion and of shared purpose in our communities, and damage far too many beyond the problem family with difficulties. A bill that aims to increase stability without compromising individual freedom ought to be one that gains wide support.

We should prefer the enabling that is implicit in a well-designed, well-structured, liberal family law bill. That is entirely consistent with the discomfort of many members at the previous focus on punitive control measures—antisocial behaviour orders and the like—designed to deal with the failures in too many families. Therefore, we welcome the move to positive support for families and, to some extent, away from punitive measures to address issues with families and offspring.

Children are at the heart of almost all couples' aspirations, so I welcome the emphasis on children in Hugh Henry's comments today. However, the first thing that I must say is that the proposals in the bill are strangely silent about children. We can glimpse the effects on their lives in some of the proposals—in the area of relationships post break-up, for example—but the core policy intentions for children, which have been articulated fairly clearly, are far from clear in the bill. However, the bill in its current form is the basis on which we can address and resolve those matters in subsequent stages of our consideration.

The Executive is in a hurry. Across the political parties, committee members have felt under considerable and perhaps unnecessary pressure to complete consideration of the bill. Indeed, we hear that the Executive would like stage 3 to happen before the end of the year, which is ambitious. I do not criticise the Executive for being ambitious, but is that unrealistic? Will it devalue and debase the bill that we ultimately pass? The distant sound of the tambours of election war already clamours in the Government's ears, to judge from the indecent haste with which the—as I shall argue—ill-developed legislation is being pursued. The consultation on which the bill is founded stretches back over a decade, so why there should be so many areas of uncertainty, continuing debate and change in the bill is a little bit of a mystery.

I will attempt to answer three questions. First, is the bill needed? Secondly, are the changes proposed necessary, sufficient and beneficial to—in order of priority—children, couples, society and the state? Thirdly, are the risks of the proposed changes high enough to sound alarm bells that we should take notice of?

Clearly, the bill touches on issues of personal morality, belief, religion and lifestyle, so the Scottish National Party will not be applying a party whip and I expect that the contributions from our benches on some of the proposals will reflect a range of views. I hope that my colleagues will largely support the onward passage of the bill, and I speak in the belief that most, and perhaps all, of them will do so, but I also speak from a position of personal involvement with the issues through the committee and elsewhere.

It was appropriate that Hugh Henry acknowledged that there will not be a universal welcome for the bill. Cardinal Keith O'Brien's submission to the committee restated the Catholic Church's position, stating that the

"Church opposes divorce in principle".

Of course, the cardinal is therefore unhappy with the proposed reduction in the periods required for divorce. He quoted Pope John Paul II as saying:

"What is missing in non-marital cohabitation is trusting openness to a future life together".

That is not a view that I hold, but it is one that will be important in our future consideration of the bill. We must take account of all views.

The minister will know that I have suggested that we should respond to lobbying from the Catholic Church by ensuring, for example, that when unmarried couples are registering their first child they are made fully aware of the options for building on and strengthening their relationship for the benefit of the child. Perhaps the state could make that information available to people in the hope that more people will enter into civil partnerships or progress to marriage to protect the future of the child. We would have to make people aware of the range of options.

I turn to some of the detailed comments that the committee has made. We certainly share the minister's concerns about the uncertainty surrounding marriage by cohabitation with habit and repute, in so far as it may exist. We support the idea of an informational campaign and recognise the need after the bill is passed—which I assume will happen—to raise awareness of the effects of its provisions. At the same time, we must ensure that marriage is also explained to the general public.

The minister will know that family support services are something in which I have taken an interest in the past, and I welcome what he has said about the Executive's objective of building capacity in the services that support family relationships, notably counselling and mediation. The reference to independent local voluntary bodies is entirely appropriate, and I would counsel that we need more support for them and perhaps less focus on the national bodies. That is of concern to my local bodies, which are already working together, collaborating and sharing premises, and are showing good practice for elsewhere. Local authorities have a role, but we must not let that role be to suppress the initiatives that are taken in the voluntary sector.

The minister's comments on the Protection from Abuse (Scotland) Act 2001 are welcome. The committee and I consider that that is a good basis for consolidating an increasingly confusing use of interdicts to protect people in relationships. The bill contains good, helpful provisions on parental responsibilities and rights. There are some difficulties with cohabitation. The Matrimonial Homes (Family Protection) (Scotland) Act 1981 already gave a definition of cohabitation, and we now have a new, different definition. As we move forward we might consider whether, by considering the definition within the context of a family law bill, we might be excluding some people who have relationships that are not familial in the conventional sense. For example, brothers who are bachelors and who live together might have similar interrelationships to the ones that are described and might reasonably expect to have similar protections. There are other examples. In other words, sex is not the only important factor and determinant.

We welcome the focus on long-term and enduring relationships. Financial interdependence, which the Executive is now focusing on, is a useful clarification of where we are going and how we should recognise cohabitation. On page 17 of the minister's response to the Justice 1 Committee's report, he talks of a couple who have given their energies and emotional and financial resources to a relationship and whose choices, particularly self-denying choices, are driven by expectations of a joint life. That is a useful clarification and one that I welcome.

Despite the clarifications about the distribution of assets at the termination of a cohabitation through death or break-up of the relationship, I continue to have concerns that the new way in which the fixed pot of money is to be redistributed in some circumstances will disadvantage children. The minister has pointed to some flaws in the committee's working on that issue but we must continue to watch it with great care.

I said that there were three important questions. Is the bill needed? Yes, I believe that it is needed and that it is time for an update. Are the proposed changes necessary, sufficient and so on? For children, the changes may be necessary and, to some degree, sufficient, although not necessarily to all degrees; for couples, they are necessary and, to some degree, sufficient, but the risk remains, particularly in reducing the time to divorce, that we may inadvertently be devaluing and destabilising relationships and attacking marriage, although I accept that that is not what we are trying to do. Society will benefit from greater clarity on and the extension of protections to people who are cohabiting, so the state and all the people in it will benefit. Therefore, I will support the bill at decision time. I hope that many members across the chamber will join me in doing so.


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