Family Justice Reform

John Lamont Excerpts

Wednesday 15th November 2017 Westminster Hall

[John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)]

I am grateful for the opportunity to contribute to this afternoon’s debate. I congratulate my hon. Friend the Member for Fareham (Suella Fernandes) on securing this important debate and on her tireless campaigning for family law reform in England and Wales.

As a Member representing a Scottish constituency and a former solicitor, notwithstanding the fact that I did not have anything to do with family law, I will contribute to this debate from a slightly different perspective. Scotland has a different legal system and a different approach to family law matters. I will keep my comments relatively brief. I do not intend to give an opinion about the adequacy of family law south of the border, but I will speak a bit about Scotland in the hope that my comments inform this afternoon’s discussion.

The Scottish legal system has been distinct from that of the rest of the United Kingdom since long before the devolution of family law to the Scottish Parliament. Scots family law has certainly changed during that time. In 1864, there were only two recorded divorces in Scotland. The modernisation of Scottish family law has come gradually. Until as recently as the 1980s, husbands had a common law right to choose the matrimonial home, and a legal presumption existed that a wife acted as a domestic manager to her husband’s home. Things have certainly changed in Scotland in recent history. We have come a long way since then. We reached the milestone of legalising same-sex marriages shortly before this Parliament—something I was happy to vote in favour of during my time as a Member of the Scottish Parliament.

However, there are some fundamental differences in approach in Scots family law. For example, in Scotland, it is almost impossible for a person to disinherit their spouse or children, no matter how much they want to do so. In England, an individual’s views, as expressed in their will, are given much greater weight. We have the “clean break” principle for divorce: there is the presumption that, unless a spouse will suffer severe hardship following the divorce, each party should be entitled to a share of the fruits of the marriage.

There are also practical differences in Scotland. A speedier divorce mechanism was introduced by legislation in 2006. Pre-nuptial agreements are generally considered enforceable in Scots law, and co-habitees have greater rights than those in England and Wales—the hon. Member for Strangford (Jim Shannon) made that point.

I certainly recommend looking at different systems to see how family justice in England can be reformed, and Scotland would be an obvious place to start. However, I urge caution in putting Scottish law on some sort of pedestal. Although it is easy to criticise the generous financial provision often awarded to spouses in England and Wales after a divorce, some might argue that the Scottish system does not well serve spouses coming out of a marriage late in life with no employment.

Although it is difficult to compare divorce rates in Scotland with those in England and Wales because of the different ways they are recorded, the numbers seem to be roughly similar. There are just over 100,000 divorces a year in England and Wales and just under 9,000 in Scotland—a similar rate, based on the number of people involved.

There are real concerns about the way in which Scotland’s key Act relating to this matter—the Family Law (Scotland) Act 2006—is working. The Scottish Parliament’s Justice Committee recently suggested a wholesale review of how it operates. We should reflect on that before we rush to replicate the Scottish system south of the border. Some parts of the legislation are seen as ineffective and insufficiently clear, and it is said that they cause unnecessary problems in often already acrimonious family law cases.

I again commend my hon. Friend the Member for Fareham for securing this important debate. I encourage her to look to Scotland for guidance, but with a critical eye.

--- Later in debate ---

[Angela Crawley (Lanark and Hamilton East) (SNP)]

I congratulate the hon. Member for Fareham (Suella Fernandes) on securing the debate, and wish her well in seeking reform of the law. I shall not labour for long, because of course, as we have heard, Scotland has a distinct legal system, and I do not want to lecture or give lessons from Scotland. I simply want a sharing of best practice between the two nations, and to ensure that where legal reform is necessary we seek to proceed in tandem, so that there are not huge disparities between England and Scotland.

For clarity, I will mention that the area of family justice reform covers marriage, civil partnership and cohabitation; what happens when a relationship ends—separation or divorce; and the relationships between parents and children, including parental rights and responsibilities and the interplay of children’s panels incorporating the rights of the child. In Scotland we have gone further than most of the other nation states in the UK to ensure that the voice of the child is paramount, and that it is ultimately the principal consideration in a divorce or resolution settlement about custody of children. However, I want to echo the sentiments expressed by the hon. Member for Fareham and reinforce what she said, encouraging continual reform and review of the process, as family life evolves. We no longer have the 2.4-child nuclear family that the system was perhaps built around. It is necessary to consider the legal system now and how family life will evolve. Valid points have been made about no-fault divorce and encouraging shared parenting, and they are worth considering. I hope that the Minister will take what the hon. Lady said into account.

I am grateful to the hon. Member for Berwickshire, Roxburgh and Selkirk (John Lamont), who spoke about Scotland’s distinct legal system; his learned experience will be welcomed by the House. The hon. Member for Strangford (Jim Shannon), who is no longer in his place, explained that Northern Ireland also has a distinct legal system, which does not necessarily recognise common-law or cohabiting partners. I hope that protections in that regard, and in connection with the rights and responsibilities of grandparents, may be strengthened. That would be a welcome adjustment.

The hon. Member for Berwickshire, Roxburgh and Selkirk spoke about work that has been done in Scotland on family justice and reform, and what will happen as of 2018. There is a strategy for review of this area of law, including the Children (Scotland) Act 1995. That is clearly necessary because things have evolved; as a law graduate I recognise that there is a need to review and update the law continually, as family life and society evolve. As I said, it is necessary for the voice of the child to be at the heart of the principle.

[John Lamont]

As to grandparents’ rights, I wonder how the hon. Lady would accommodate that question. The Scottish Government have considered it in the past and have refused to confirm that they want to amend the law proactively to accommodate it. I wonder what her view of that is.

[Angela Crawley]

Personally, I am happy to say that I think grandparents should play an active role in their grandchildren’s lives. There is room, in the next review period, to consider the role of grandparents, but as I sit in this place I have no locus in the matter and my opinions are frankly irrelevant. However, I agree that children and their grandparents should be able to have a relationship, and there is room in the review for consideration of the role of kinship carers, as it is not simply grandparents but also aunts and uncles, or other relations, who often take on parental responsibilities or care-giving roles.

I believe that there is room for the Children (Scotland) Act to be transformed into something fit for 2017, and fit for purpose in the future. That is why I fully support the motion, and why I argue that we need continually to review family law and to consider the possibility of consulting on simplifying the process and making it more user-friendly. That is our ambition in Scotland—to make the process easier for families. Families have a difficult enough time when relationships are dissolved; the last thing they need is to be pulled through a family court system that does not necessarily make sense to them or seem user-friendly.

In Scotland, we have made a specific commitment to encourage legislation on domestic abuse, which includes coercion and controlling behaviour. I hope that that will be replicated across the UK. I think that it is necessary to cover all aspects of family law, including domestic abuse and violence, and that there should be protections for anyone who finds themselves in that dangerous situation.

An area of law that has not been covered, which is not specifically relevant to the title of the debate but is relevant to the area, is gender recognition. The Government have on several occasions had the opportunity to respond to the inquiry by the Women and Equalities Committee on the Gender Recognition Act 2004. I hope that there will be progress across the UK, as there has been in Scotland, and a commitment to non-medicalisation, self-identification, and the ability for anyone who identifies themselves as transgender to have recognition in law for their chosen gender. It is entirely reasonable and fair and I hope that the Minister and the Government will take the opportunity to respond to that aspect of law reform in the debate.