Amanda Masson: Time to change outdated laws on parental rights

Amanda Masson is a Partner at Harper Macleod LLP and an accredited specialist in Child Law and Family Law.Amanda Masson is a Partner at Harper Macleod LLP and an accredited specialist in Child Law and Family Law.
Amanda Masson is a Partner at Harper Macleod LLP and an accredited specialist in Child Law and Family Law.
Despite the relevant legislation underlining that parents in Scotland have equal parental rights and responsibilities, in practice this is simply not the case.

From a psychological, legal and social perspective, the current legal framework in Scotland does not support the notion that on separation, both parents should automatically share the care of their children. Unlike many European countries, the Scottish courts have been reluctant to endorse such a presumption.

I believe it is important to re-examine our family law in light of the changing role of fathers, and recently brought together a selection of the country’s family lawyers along with eminent child psychologist Professor Thomas MacKay and Ian Maxwell, the national manager of Families Need Fathers, to try and find a path by which Scotland can catch up with our continental neighbours.

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The legislation in Scotland appears to be constructed in such a way as to encourage the courts and parents to adopt a routine whereby, despite both parents having equal parental status and a right to an equal division of time, there is a 
“primary carer/resident” parent and a “non-resident” parent.

The prevailing stereotype is clear – for a child to adjust after parental separation, typically the mother (who usually adopts the role of primary carer) is required to have their views on childcare upheld and respected before it is possible to consider the long-term care arrangements for a child and the extent of contact the other parent may have.

However, social and cultural shifts occur at a faster pace than the evolution of child and family law legislation.

In the 1970s, 8 per cent of children in Scotland carried the stigma associated with coming from what was termed a “broken home”. Latest statistics suggest that almost half of Scotland’s children come from separated families, therefore the present, outdated legislation may not be serving their best interests.

From a psychological perspective, the main protective factor for children facing parental separation is the extent of ongoing contact with the parent who is no longer living with them day-to-day. It is important for them to maintain their sense of identity and genealogical connectedness with both parents.

The polarised position that can often be taken by acrimonious parents leads to an exaggeration of conflict and tension and can result in children being subject to even more destabilisation.

A better understanding and recognition of the psychological and emotional effects on both adults and children within the separation and legal process would allow legal advisers to be more creative in providing solutions, and in turn better outcomes for children.

In countries such as Sweden, shared care is the default outcome in the absence of parental agreement.

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There is a presumption, albeit one that can be rebutted, that it is in the best interests for separated parents to enjoy an equal status and an equal role in the upbringing of their children. Research from Scandinavia suggests positive outcomes.

This has the benefit of ensuring both parents see their children regularly, neither parent has a greater degree of control and it allows parents to be on an equal footing in terms of employment commitments and social lives.

It is recognised that other jurisdictions enjoy different benefits systems, different parental leave regimes and different childcare models, however a reshaping of the legal landscape is on the Scottish Government’s agenda.

The overwhelming consensus from our debate was that the present legislation – the Children (Scotland) Act 1995 – should be updated to reflect the change in social norms.

In the meantime, those involved in the process must consider whether it is time an open-minded approach to cases were adopted to overcome stereotypes and improve equality amongst parents.

Amanda Masson is a partner at Harper Macleod LLP and an accredited specialist in child law and family law