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‘Wholesale Review’ of Scottish Family Law May Be Needed

Holyrood’s Justice Committee recently published a review of the Family Law Scotland Act 2006 and concluded that a complete review of Scots family law may be necessary in the next session of Parliament.

The Family Law Scotland Act 2006 was a significant step forward in Scots family law as it introduced rights for cohabitants, provisions for when a non-married couple separate and reformed the rights of unmarried fathers. The Act was praised for bringing family law into step with modern family life and reflecting the reality that more and more parents are cohabiting couples, rather than married.

However, the legislation has been criticised for being unclear and for imposing strict time limits on some matters.

The Committee heard evidence from a breadth of interested parties, including academics, legal practitioners, policy makers and groups such as Families Need Fathers.

Christine Grahame MSP, Convener of the Justice Committee said: “With the main legislation on child law now arguably beginning to show its age, it may be time for a wholesale review, focussed as much on how the law is applied, and the mechanism used to resolve disputes, as on what the law says. . .

“This short report is, in effect, a report to our successors on the next Justice Committee. It sets out views on aspects of family law covered in the 2006 Act they may wish to consider in more depth in the next session.”

Parental Rights and Responsibilities

The practical application of the child law provisions in the Act was central to the post-legislative scrutiny. The main discussion of this section of the Act centred around whether unmarried fathers continue to be discriminated against and whether the legislation facilitates an amicable separation.

Christine Graham said, “Everyone agrees that the welfare of children should be of paramount importance within family law. However, it appears that the current legislative framework can give rise to adversarial disputes which can make a bad situation worse. Whether that is down to how the law is framed or how it is applied is open to debate.

“Overall though it is clear that the way in which the Scottish legal system handles family law cases involving children raises strong and conflicting views.”

Ian Maxwell of Families Need Fathers said, “We are very grateful to the committee for undertaking this short, sharp exercise. The committee acknowledges that its conclusions are therefore more in the nature of observations than recommendations.”

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