Family Law (Scotland) Act 2006 comes under post-legislative scrutiny

The committee invited a number of organisations – including the Law Society of Scotland, Families Need Fathers (FNF) Scotland, Scottish Women’s Aid and individual lawyers and academics with experience of the act – to submit overviews on its effectiveness.

In its submission the Law Society hailed s.23, which it said made a “significant improvement” to the law by “providing for nonmarital fathers to gain full parental rights and responsibilities automatically when registering paternity.”

It added, however, that the provision is less effective where the mother opposes registration of the father.

While the father can seek a declarator of parentage, neither he nor the court can compel the mother to subject the child to DNA testing.

As such, the Law Society said the committee “may wish to consider options to facilitate unmarried fathers to register in situations of maternal opposition.”

It added: “In doing so, it is important to ensure that safeguards are available in situations where the mother may oppose on grounds of fear of harm.”

In its submission, FNF Scotland identified problems with sections 23 and 24.

Section 23 has led to unmarried fathers who have parental rights and responsibilities for a child born after May 4 2006 but not for older brothers or sisters born before that date – a situation that will persist until 2022.

Cross-border cases were the second issue raised by FNF Scotland.

Where children were born south of the border to unmarried parents after 1 December 2003 – the commencement date for parental rights of unmarried fathers in England and Wales – and the parents separate and the mother takes the children to Scotland, the father will find his rights have “evaporated at the Tweed”.

FNF Scotland added that s.24 is “vulnerable to casual and opportunistic abuse” and that in general it assists mothers who wish to control or end the relationship between their children and a non-resident father.

Its submission adds: “We believe the requirement to consider issues of domestic abuse set out in Section 24 has provided a perverse incentive to encourage conflict between unmarried parents. We do not excuse or condone abusive behaviour on the part of separated fathers any more than we excuse or condone it on the part of separated mothers.

“Domestic abuse is, of course, a serious matter and should be a consideration in any child welfare hearing where estranged parents can’t agree arrangements for sharing the care of their children. We feel it is a fundamental weakness of the act that the legislators of the time viewed the proposals disproportionately through the prism of domestic abuse leading to amendment of subsection (7) of section 11 of the Children (Scotland) Act 1995.”

Scottish Women’s Aid (SWA), an umbrella organisation for 37 member groups that provide services directly to women, children, and young people, said in relation to the protection from abuse provision of s.24: “Evidence abounds, from women, from children and young people, from service providers, and from solicitors practicing family law, that the intention of the Act has not been met and that the system continues to put children, young people, and their mothers at significant risk.”

It added that the courts hold fathers who have been abusive to an “unacceptably low standard of parenting that could not contrast more with the standard expected of the parent with care of the child or children.”

Mothers are “condemned for their ‘failure to protect’ and are judged on their apparent inability to effectively personally police the behaviour of the perpetrator,” it adds.

It also described mothers’ failures to comply with court orders as attempts to “protect themselves and their children”.

Other submissions were made by: Professor Elaine Sutherland; Jennifer Gallagher, partner, Lindsays Solicitors; Linda George, Linda George Family Law Limited; Lynne Collingham, partner, TC Young Solicitors; Professor Kenneth Norrie, Law School, University of Strathclyde; Grandparents Apart UK; Professor Janeen Carruthers and Professor Elizabeth Crawford, School of Law, University of Glasgow; Professor Jane Mair; and Dr Frankie McCarthy, School of Law, University of Glasgow; and advocate Kirsty Malcolm.