‘Wholesale review’ of Scots family law may be required says Justice Committee

Following concerns raised about the effectiveness of some aspects of the Family Law (Scotland) Act 2006, the committee took evidence from academics, legal practitioners and representatives of different groups with an interest in family law as part of its post-legislative scrutiny work.

The committee focused on cohabitation and parental rights and responsibilities and heard a range of concerns about current provisions. It is now recommending that the next Justice Committee use the report as a starting point when considering its future work in this area.

Speaking to Scottish Legal News, Rachael Kelsey, a director at family law specialists SKO, said the report was “hugely welcome”.

She added: “As a practitioner at the ‘coal face’ of family law, the element of the report which is most welcome is the recognition that there is a need to focus not just on the substantive law, but also on the processes that surround dispute resolution in family cases – as the committee noted: ‘With the main legislation over 20 years old, we note views that it may be time for a wholesale review, focussed as much on how the law is applied, and the mechanisms used to resolve dispute, as on what the law says. We consider that cases would benefit from increased use of mediation and, if necessary, from being heard by specialist family law Sheriffs.’

“We are in a strong position in Scotland to improve the ‘how the law’ bit is dealt with, not least because we now have a world leading bespoke family law arbitration scheme (FLAGS) in place; a long history of specialist family mediation in CALM and experienced family law sheriffs in more than one sheriffdom.

“It is to be hoped that this important report can provide real impetus in the coming years for the further development of effective and child-centred dispute resolution in Scotland in family cases.”

Justice committee convener Christine Grahame MSP 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.

“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.

“In particular we consider that cases would benefit from increased use of mediation and, where possible, being heard by specialist family law sheriffs.”

On cohabitation, Ms Grahame added: “Stakeholders welcome the new rights for cohabitants enshrined in the 2006 Act. They have helped family law in Scotland adapt to modern times.

“However, we heard concerns that the legislation is insufficiently clear and that lawyers sometimes struggle to tell separating couples what they can actually expect from the provisions.

“More generally, we have heard of confusion from the general public about the state of the law on adult relationships – cohabitation, marriage and civil partnerships, which have changed significantly in recent years. It has been argued that changes have been piecemeal to the extent that the law now lacks coherency and purpose.

“By necessity, this has been a brief examination of the Family Law (Scotland) Act 2006 and it offers a snapshot of stakeholders’ opinions ten years on.

“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.”