Need For 'Wholesale Review' Of Family Law

17 March 2016, 07:08

A "wholesale review'' of how family law in Scotland operates may be needed, MSPs have said.

Holyrood's Justice Committee recently took evidence from a range of people including academics and lawyers on some aspects of the Family Law (Scotland) Act 2006.

MSPs focused on cohabitation and parental rights and responsibilities and heard a range of concerns about current provisions during its post-legislative scrutiny.

Convener Christine Grahame said their report sets out views on aspects of family law that the next committee "may wish to consider'' in more depth.

"Everyone agrees that the welfare of children should be of paramount importance within family law,'' she said.

"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, focused 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.''

Speaking about the evidence taken on cohabitation, Ms Grahame said: "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.''