I was delighted to participate recently in a two-day event to mark 20 years of family and child law in light of the 20th anniversary of the Scottish Parliament. It presented a chance to consider the body of laws in Scotland which regulate certain aspects of family relationships and the rights and obligations in respect of children.
The first significant, or dare I say it radical, piece of legislation arrived in 2004 with the advent of the Civil Partnerships Act 2004. This legislation created a new form of legal relationship between same sex couples though at this time they were not able to marry. But that was just the beginning.
In 2006 we were gifted the Family Law (Scotland) Act 2006. This has probably been the most extensively debated Act, not least because of the difficulties which it has presented for practitioners.
The policy memorandum, setting out the Bill’s policy objectives, recognised the significant changes in family formation and attitudes to the concept of family. Overall, what we saw was a move towards equality regardless of the status of the relationship between individuals.
The Act introduced a range of provisions designed to address the legal vulnerabilities experienced by family members in Scotland and ensure family law protects the best interests of children regardless of the types of family to which they belong. It impacted on a number of areas including divorce, parental rights, protection from domestic abuse, forced marriage and cohabitation.
Marriage by cohabitation and repute (common law marriage) was abolished, but instead cohabitees were given restricted rights to make a financial claim on separation or on the death of a cohabitee.
The length of separation required to establish the irretrievable breakdown of the marriage, which had been five years without consent and two years with consent, was reduced to two years and one year respectively.
In relation to child law, while the concept of “illegitimacy” was not abolished as such, all Scottish children now enjoy equal legal status regardless of the makeup of their family unit. Significantly, unmarried fathers were given automatic parental rights and responsibilities as long as their name appeared on their child’s birth certificate.
The Adoption and Children (Scotland) Act 2007 aimed to modernise the adoption system, ensuring that more children enjoyed a stable home life with an eye on their lifetime, not just childhood.
The Act represented the first overhaul of the adoption system since the 70s and saw the pool of potential adoptive parents widened by enabling civil partners and unmarried heterosexual couples to adopt.
The Children and Young People (Scotland) Act 2014 is best known for the introduction of the recently scrapped “Named Person Scheme”. The aims of this legislation were laudable, but not so great in “real life”.
The Domestic Abuse (Scotland) Act 2019 was described by Justice Secretary Humza Yousaf as “an important step towards increasing awareness of the full extent of domestic abuse for victims and those around them”.
It creates an offence with respect to the engaging by a person in a course of behaviour which is abusive towards that person’s partner or ex-partner. The new law covers not only spouses, civil partners and cohabitants but also people in intimate personal relationships who do not live together.
As well as physical abuse, it covers other forms of psychological abuse and coercive and controlling behaviour that cannot be easily prosecuted under the existing law.
What might the next 20 years hold?
Same sex couples can now marry and heterosexual couples are about to be able to enter in to civil partnerships – so the process of pretty radical change has evolved since the birth of the Scottish Parliament.
I anticipate further, significant changes to the family and child law framework and practice. Next year will more likely than not see the introduction of the Children (Scotland) Act 2020 which will change how the views of children are taken, treatment of vulnerable persons in proceedings in which domestic abuse is an issue, and regulation of contact centres and child welfare reporting.
With society and science both evolving rapidly, I anticipate more consideration of the laws around family creation, including adoption, surrogacy and assisted conception.
These questions relate to issues which were not on my family law radar 20 years ago. Family life, and family law, have evolved and will continue to do so.
Amanda Masson is a partner in the Family Law team at Harper Macleod