After section 17

Family Law (Scotland) Bill: Stage 3 – in the Scottish Parliament at 2:55 pm on 15th December 2005.

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Photo of Murray Tosh Murray Tosh Conservative 2:55 pm, 15th December 2005

Group 10 is on court orders concerning parental responsibilities and the role of wider family members. Amendment 41, in the name of Rosemary Byrne, is the only amendment in the group.

Photo of Ms Rosemary Byrne Ms Rosemary Byrne SSP

The purpose of amendment 41 is to highlight the positive role that grandparents or other family members have in children's lives and to ensure that that role is widely recognised. Although the bill does not confer legal rights on grandparents and other family members, the development of the charter for grandchildren will go some way towards ensuring the recognition of the positive effect that grandparents and wider family members can have.

Amendment 41 would ensure that one of the key aims of the charter—that, in making decisions, courts should consider whether grandparents can play a role in children's lives—is enshrined in legislation. The amendment would ensure that the role of grandparents and other family members is not overlooked and that the best interests of the child are taken fully into account.

I move amendment 41.

Photo of Christine Grahame Christine Grahame Scottish National Party 3:00 pm, 15th December 2005

Although I have a great deal of sympathy with amendment 41, I will not support it. Anyone who can show an interest in a child can make an application to the court at present—I use the word "interest" in its legal sense. Grandparents, aunts, uncles or associates who have been involved in the life of a child may already seek a contact order, residency or some role in a child's life. Children—often surprisingly young children, perhaps eight or nine—can be questioned by a sheriff if it is felt that they can express themselves about what they want to happen in their lives. There are many good sheriffs on the bench who specialise in the sensitive area of family law.

Grandparents often play a supportive role in relationships, although, as I learned in my 12 years of practice, some grandparents can be mischief makers when a couple are trying to reach a divorce settlement—they may pitch parents one against the other by saying things such as, "I wouldnae let him have access to the weans." Grandparents are like everybody else: a mixed crowd.

It is good to bring the issue of wider family members to the chamber and sheriffs should take cognisance of it. However, we should not enshrine it in statute.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

I support the involvement of members of the wider family. I accept Christine Grahame's point that there are bad grandparents just as there are bad parents, bad MSPs and bad anyone else. However, the concept of the wider family can be extremely positive.

Grandparents have been lobbying intelligently on the issue for many years, but they are not the only people who would be covered by the amendment. Step-parents often have a long relationship with the child and help him or her to grow up, yet they are given no legal status. Similarly, an uncle or an aunt may occupy that important position. The courts should recognise that a well-meaning, useful and intelligent relation could be involved in looking after the future of a child in a much better way than at present. At the moment, some sheriffs may be managing well to involve members of the wider family. However, the Parliament should give guidance to all sheriffs to say that the law must recognise the wider family.

We could learn from the extended families of the east. Today, our concept of family focuses too much on two plus two in a wee box. That is wrong. We should widen the concept of family. Therefore, the amendment is well worth supporting.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I totally sympathise with the sentiment behind the amendment, but I do not believe that it would have the outcome that Rosemary Byrne desires. The amendment would give an almost automatic right of contact to grandparents and other relatives. The best way of ensuring contact is to leave the matter to the discretion of the court, where appropriate, or to work hard behind the scenes to ensure that everyone, including the parents, focuses on the needs and interests of the child. In that way, the place of grandparents and other meaningful people in the life of a child is assured and the child is afforded contact time with those people.

Photo of Mary Mulligan Mary Mulligan Labour

I will make a couple of points on behalf of the Justice 1 Committee. We took evidence on the issue from grandparents groups and we recognise the strong role that grandparents can play in the upbringing of children. However, we feel that it is important that we do not make that role into a statutory responsibility—the difficulties involved have been mentioned already.

Responsibility for children rests with parents. To give statutory rights to grandparents could further confuse an already complicated situation. The committee believes that the grandchildren's charter will tilt the balance towards the children's right to benefit from the relationship that they can have with their grandparents and, as Donald Gorrie said, with the wider family. However, the committee felt that that relationship should not be put on a statutory footing.

Sheriffs who regularly deal with such cases assured us that grandparents act as a stabilising influence. We have recognised that and the grandchildren's charter will go some way towards recognising it, too. Therefore, the amendment should be rejected.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

It is clear that there is agreement in the chamber that wider family involvement is beneficial. However, I concur with the points made by Christine Grahame, Mary Mulligan and Margaret Mitchell. To enshrine contact between grandparents and grandchildren in law would be fundamentally wrong. What matters, and what must always be paramount, is the best interests of the child. There is no doubt that the involvement of a loving grandparent, aunt or uncle is beneficial and will add to a child's life, but to force the involvement of grandparents on the child would be counterproductive.

As has been pointed out, there is already an opportunity for any interested party—regardless of whether they are a blood relative—to apply for a contact or residence order. Sometimes, tragedies occur when sons and daughters fall out with their parents, but they should work towards reconciliation. It would be fundamentally wrong to enshrine in law the opportunity to make an order for access to a grandson or granddaughter, except in the most unusual circumstances in which part of the family is deceased. We should accept what Mary Mulligan said. We must take cognisance of the grandparents charter, but fundamentally we must trust in the good sense of our judges and sheriffs, who, in the main, tend to get it right. These are difficult matters and decisions must be made on each individual case. We should not force the issue in any particular circumstance.

Photo of Phil Gallie Phil Gallie Conservative

I was persuaded by Rosemary Byrne's argument. She made the point that the amendment would allow the courts to consider the role of grandparents. Christine Grahame said that the courts can already do that, but amendment 41 seeks to ensure that the grandparents charter is recognised in the bill. Kenny MacAskill and others said that they have a great deal of respect for the grandparents charter. To my mind, there is value in recognising the charter in the bill.

Photo of Hugh Henry Hugh Henry Labour

I point out to Phil Gallie—this is also relevant to what Donald Gorrie said—that Rosemary Byrne's amendment does not mention a grandparents charter. The amendment deals with the charter for grandchildren and looks at the matter from the child's perspective. Some members have concentrated on grandparents, but the amendment focuses on grandchildren.

Photo of Phil Gallie Phil Gallie Conservative

I accept the minister's comment. He is absolutely right, but perhaps that gives greater emphasis to Rosemary Byrne's argument. The fact is that everyone in the chamber is interested in the protection of children and in doing what is best for them. As Donald Gorrie said, the wider family may well be the best option for the child. The amendment does not seek to mandate the judge; it simply asks the judge to consider the matter. On that basis, I support the amendment.

Photo of Karen Gillon Karen Gillon Labour

I had some sympathy with Rosemary Byrne's amendment but, having considered it further, I think that it goes one step too far. Grandparents continue to play a valuable role in their grandchildren's lives. If grandparents are excluded, that is often because the parents have failed to work out their relationship. Loss of contact with the grandparents is a by-product of problems in the parents' relationship. If the bill helps the parents to sort out their acrimony in taking forward a divorce, it will go some way towards resolving some of the issues for grandparents.

As a child, I experienced an acrimonious divorce, but I had full contact with my grandparents on both sides and I appreciate the stability and support that they gave me in working through that difficult situation. Where such contact is appropriate and possible, it should happen. However, if the bill helps mums and dads to move forward, grandparents will benefit as well.

Photo of Hugh Henry Hugh Henry Labour

Rosemary Byrne's amendment 41 seeks to ensure that the court has

"regard to the charter for grandchildren".

It is important to keep emphasising that we are taking the child's perspective. We have emphasised that throughout the bill. Kenny MacAskill was right to say that we need to consider the child's best interests. Christine Grahame explained in detail how the courts examine the broader range of issues and consider the contribution that members of the wider family can make in a child's interests. Margaret Mitchell is right: the amendment would not achieve the desired outcome.

We started by developing a grandparents charter but, as discussions progressed, it became clear that we had to shift the focus back to grandchildren. It would have been wrong to consider an adult's interests ahead of those of a child. The charter is one of several packages of non-legislative projects that we are undertaking, including the parenting agreement and a public information campaign.

A range of organisations supported the drafting of the charter. We involved people from organisations such as the Association of Directors of Social Work, the Family Law Association, Parenting Across Scotland, Family Mediation Scotland, the Grandparents Apart self-help group, Stepfamily Scotland, Children in Scotland, Scottish Women's Aid and Families Need Fathers.

To avoid doubt, given that we are talking about grandchildren and not grandparents, it is useful to put on record our recognition of the tremendous role that many grandparents play. Christine Grahame is right: some grandparents play an inordinately invaluable role, although others may be quite obstructive. In general, we know that grandparents do a huge amount throughout the country.

When we debated financial support this morning, Cathy Jamieson said that we are considering a range of measures. We know that many grandparents step into the breach when parents have failed for whatever reason—whether it is medical, social or personal problems. Grandparents may be left with the burden at a time when they should, in a sense, be winding down. We need to examine how to support them far better and we are doing that.

Photo of Phil Gallie Phil Gallie Conservative

I go along with much of what the minister says, especially in relation to the debate this morning. He knows the bill better than I do. Is the charter for grandchildren mentioned elsewhere in the bill? If so, I could well be satisfied.

Photo of Hugh Henry Hugh Henry Labour

The charter is not mentioned elsewhere. Kenny MacAskill and other members spelled out why neither the charter nor the parenting agreement is mentioned in the bill. Those documents are non-legislative and are designed to help people; they will not be legal documents. The court will take into account many factors, such as anything that a parenting agreement says. It will listen to children and consider the contributions from other family members. However, the charter was never designed to be a legal document.

As Margaret Mitchell said, Rosemary Byrne's proposal would not achieve the desired outcome. I have tremendous sympathy with what Rosemary Byrne seeks and I have put on record our appreciation of the work that grandparents do throughout Scotland. The charter was drawn up to recognise the value that grandparents can add to their grandchildren's lives but, in practical terms, it does not serve any real purpose.

In considering orders that relate to children, the courts will take into account current arrangements for a child, parents' views and, as Christine Grahame said, the views of other family members such as grandparents, if appropriate. The charter says nothing about the relationship between children and their grandparents, so to compel sheriffs to have regard to the charter when they consider the granting of a contact order would at best be inappropriate. If the amendment were agreed to, it could also reduce the flexibility for revision in future.

The intention is honourable and right and we sympathise with it. However, the practical effect would not be achieved. I ask Rosemary Byrne to withdraw her amendment.

Photo of Ms Rosemary Byrne Ms Rosemary Byrne SSP 3:15 pm, 15th December 2005

First, I welcome the charter for grandchildren as a good move in the right direction. However, my reason for lodging amendment 41 is that there is no mention in the bill either of the charter or of the role of grandparents or other family members. Given that grandparents often play a tremendous role in children's lives and hold things together—for example, they provide child protection in circumstances of drug and alcohol misuse—it is surely time to ensure that they have some recognition. I do not ask that grandparents be given parental rights and responsibilities; I am just asking that they be given recognition.

Christine Grahame and others pointed out that the role of grandparents can be recognised by due process through the courts, but over the past two or three years I have spoken to many grandparents who have found the court process to be not only costly but, in some cases, extremely destructive and stressful. Amendment 41 provides another opportunity to recognise in the bill the role that grandparents play. As Phil Gallie said, grandparents are asking only for recognition of their role. I ask members to support amendment 41, which would provide that recognition.

It is interesting that many, although not all, members who have spoken in support of amendment 41 have been grandparents themselves. Some of us know full well how important that role is. I ask members to support amendment 41.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 41 be agreed to. Are we agreed?

Members:

No.

Photo of Murray Tosh Murray Tosh Conservative

There will be a five-minute suspension, after which I will put the question again before moving to the vote.

Meeting suspended.

On resuming—

Photo of Murray Tosh Murray Tosh Conservative 3:22 pm, 15th December 2005

The question is, that amendment 41 be agreed to. Are we agreed?

Members:

No.

Division number 6

For: Byrne, Ms Rosemary, Canavan, Dennis, Cunningham, Roseanna, Curran, Frances, Ewing, Mrs Margaret, Fergusson, Alex, Fox, Colin, Fraser, Murdo, Gallie, Phil, Gorrie, Donald, Hyslop, Fiona, Ingram, Mr Adam, Martin, Campbell, Matheson, Michael, McGrigor, Mr Jamie, Milne, Mrs Nanette, Neil, Alex, Robison, Shona, Scott, John, Sheridan, Tommy, Turner, Dr Jean
Against: Aitken, Bill, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brocklebank, Mr Ted, Brown, Robert, Brownlee, Derek, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ewing, Fergus, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Gibson, Rob, Gillon, Karen, Glen, Marlyn, Godman, Trish, Goldie, Miss Annabel, Gordon, Mr Charlie, Grahame, Christine, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Mather, Jim, Maxwell, Mr Stewart, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McFee, Mr Bruce, McLetchie, David, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Mitchell, Margaret, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scanlon, Mary, Scott, Eleanor, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Wallace, Mr Jim, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Abstentions: Adam, Brian, Johnstone, Alex

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 21, Against 96, Abstentions 2.

Amendment 41 disagreed to.

Photo of Murray Tosh Murray Tosh Conservative

Group 11 is on court orders relating to parental responsibilities and so on. Amendment 42, in the name of Pauline McNeill, is grouped with amendment 15.

Photo of Pauline McNeill Pauline McNeill Labour

Going to court is an indication that there is conflict over or disagreement about contact with children. The parental agreement should provide an important starting point for separating parents. I originally wanted the parental agreement in the bill, but I have accepted ministers' assurances that it is a valid document to present to the courts.

The Children (Scotland) Act 1995 requires a court to consider contact and residency in the interests of the child. Indeed, the context of the 1995 act is that there should be joint decision making about children, whether or not they are resident with one parent. More work needs to be done on the 1995 act to ensure that parents understand that we are trying to achieve joint decision making.

When there is conflict, procedures can be protracted. I am familiar with cases in which the court has taken four, five, six or even seven years to reach a decision. There is a special procedure for family contact cases, but they are not always speedily conducted. Glasgow Sheriff Court has two specialist sheriffs, and I believe that they make a difference because they can press individuals when there are difficult issues and emphasise the role of both parents. However, when those cases go to court, they are costly and children are involved. We must impress on people the fact that it is the duty of both parents to consider the interests of their children.

The Executive has not yet acknowledged the extent of the problem, although it has shifted significantly in two important areas—the first is research and the second is access to justice. My amendment 42 requires the Executive to regulate for a shorter, speedier process. At issue is access to civil justice. We have heard in the chamber of cases that have cost ordinary individuals £30,000, £40,000 or £50,000 and rising, just to get access to the civil courts in order to see their children.

Although amendment 42 is a probing amendment, I emphasise my concern that we must do better to reduce the cost and length of such cases. My primary concern is about cases in which people argue for contact and the costs continue to rise significantly. In addition, parties who defend a position might claim legal aid, so the cost to the public purse must also be considered.

The debate on the previous group of amendments was about grandparents, who also have to use the 1995 act. They too might have problems with cost in order to get into court to argue their point of view.

The Executive's amendment 15 concerns the enforcement of contact orders. There are many cases in which the court grants an order that is frustrated or refused by the parent who has residency. I make it clear that, although I recognise that both parents must adhere to contact orders and I support action to deal with both parents, I refer to cases in which there is no suggestion of domestic violence. I supported the Executive's strengthening provisions to ensure that sheriffs have regard to both women and children when making such determinations and I do not argue for parents to be jailed or fined. However, the operation of contact orders is a genuine concern and it would be wrong simply to acknowledge and condone that contact orders are not complied with in some cases. Although it is difficult to find a solution—Hugh Henry has always said that—it would be wrong to give the impression that because we cannot find a solution, we therefore condone parents who refuse to abide by contact orders. It is not in the interests of children to do that.

Where do we go from here? I accept that there are flaws in the committee's position, which is now in section 17B of the bill and which does not achieve the desired effect. I support the Executive amendment for those reasons. However, I hope that the Executive will think further about what we do about the difficult cases because we do not know how many there are. I welcome the Executive's commitment to research that matter. We need to make a proportionate response. We need a mechanism that at least attempts to recognise that when the court has made a decision in the interests of the child, as it is required to do, we can do more—in a family-friendly way—to effect that decision.

I move amendment 42.

Photo of Hugh Henry Hugh Henry Labour

Amendment 15 removes section 17B, which was inserted into the bill by an amendment from Sylvia Jackson at stage 2. Section 17B seeks to compel the courts, when making or varying a contact order, to attach to it a notice warning of the consequences of failing to comply with the contact order.

I understand what drove Sylvia Jackson to lodge her stage 2 amendment and what was behind some of the other issues that she raised at that stage. Indeed, both Sylvia Jackson and Pauline McNeill have been diligent in pressing an issue of genuine injustice at times when one parent is denied access to their children. As a parent myself, I could not begin to imagine what it would be like not to have access to my child, despite having a court order to support me. Pauline McNeill was absolutely right to outline some of the implications, of both cost and the significant time that it takes to resolve such issues.

I sympathise with what Sylvia Jackson attempted to achieve to improve the quality of contact between children and their separated parents. However, section 17B as constructed could be unhelpful. It could be unduly intimidating to warn parents, before either of them had done anything wrong, of the consequence of non-compliance. At worst, it could encourage one parent to seek opportunities to threaten the other with consequences, for even the slightest breach. Our main motivation for lodging amendment 15 was the unintended consequences of section 17B. If it achieved simply what Sylvia Jackson was seeking to achieve, we might have been able to live with it. Unfortunately, it affects each party differently. The resident parent could face harsher consequences than the non-resident parent. Having listened and spoken to Sylvia Jackson, I do not think that she intended that.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party 3:30 pm, 15th December 2005

I am listening carefully to what the minister says. Can he explain how there are any new consequences because of the existence of section 17B? I accept that there is potential for psychological pressures, but the minister is suggesting that there could be further consequences.

Photo of Hugh Henry Hugh Henry Labour

The warning will be effective only if there are sanctions to back it up. The sanctions to back up the warning affect the parties differently. One party faces far graver sanctions for non-compliance than the other. I have already mentioned the potential for people to feel intimidated.

Photo of Christine Grahame Christine Grahame Scottish National Party

I, too, am listening carefully to the minister. He is simply informing us of the existing position in law. Parents must understand that a court order is not made lightly and that it is contempt of court to breach it. All that will be given is information—nothing substantive is changing.

Photo of Hugh Henry Hugh Henry Labour

However, it remains for the court to determine how issues should be raised, whether warnings should be given and what action should be taken. We are attempting to deal with issues that are best left to the rules of court. We do not think that section 17B is the best way of proceeding, which is why amendment 15 has been lodged.

We are concerned that the issues raised by both Sylvia Jackson and Pauline McNeill are substantial, and we intend to move on two fronts. First, we want to determine the extent of the problem. When Sylvia Jackson drew attention to it, we found that there was a lack of accurate information and statistics. Some of the information was not particularly pertinent to Scotland. At stage 2, I gave the commitment that we would undertake research into post-separation contact arrangements. We need to scope the extent and shape of the problem, to understand what works and does not work and to examine the durability of the arrangements. Once we have a clear understanding of the problem in Scotland, we can start to design specific solutions. If it transpires that court-based solutions are needed—we do not know for certain that that is the case—and that the issue cannot be addressed through changes to the rules of court, we will seek a suitable legislative vehicle to introduce those solutions. I hope that the civil justice review that we intend to carry out will offer us scope to do that.

My second point is that, in direct response to what Sylvia Jackson, Pauline McNeill and others have said, we propose a pilot project to explore issues relating to contact enforcement. I will give members an outline of the proposals. It will be an outline only, because much remains to be developed with key partners, including the judiciary and the Scottish Court Service. We propose to establish a contact compliance officer, initially in one or two courts. The overall purpose of the post will be to contribute to local resolution of disputed contact cases, to provide data and analysis for wider research into the causes of breach of contact and to contribute to developing ideas for options for reducing the incidence of such breach and securing the parties' continued exercise of their parenting role. The proposals are very much in the early stages, but we will work up a fully developed project plan that will establish a framework for the role of contact compliance officers and their interface with the court and the parties involved. The officers' functions are likely to include: early and protracted involvement in cases in which a contact order has been breached; becoming a point of contact between the parties; supporting and giving the parties practical advice, including information about relevant services; explaining to parties the consequences of failure to obey the court order; and calling on mediators' skills, if appropriate. That goes some way to realising what Sylvia Jackson is trying to achieve with her amendment, but it also recognises the concerns that she and Pauline McNeill have.

Cost is an issue when one party has access to legal aid and the other does not. I will have further discussions with the Scottish Legal Aid Board about how the rules are applied and whether changes need to be made. It cannot be right that one party can use legal aid to thwart another party's access to justice without further consideration. We will negotiate with sheriff principals to explore the structure of the role of contact compliance officers and how they could add value to the current family court system. We will also explore the possibility either of using the existing rules of court or making new ones to make provision for the referral of appropriate cases to the contact compliance officer.

Amendment 42, in the name of Pauline McNeill, seeks to speed up court procedures. She has recognised the Executive belief that the amendment is unnecessary because the existing court rules are sufficient. The rules direct the court, in appropriate cases, to set a child welfare hearing for the next suitable date, allowing 21 days between the lodging of the notice of intention to defend and the hearing. Amendment 42 also cuts across the existing provision for making rules of court either by acts of sederunt or by rules of the court of session. The judiciary, rather than ministers, should determine court procedures. That maintains the independence of the judiciary. I hope that with those assurances, Pauline McNeill will withdraw her amendment.

Photo of Murray Tosh Murray Tosh Conservative

Too many members wish to speak, and I will not have a chance to call everyone. I will restrict speeches in this group to two minutes.

Photo of Sylvia Jackson Sylvia Jackson Labour

I will speak quickly. I support the sentiments behind amendment 42, in the name of Pauline McNeill, and I turn quickly to amendment 15. At stage 2, I lodged three amendments dealing with the enforcement of contact orders. One related to warning notices and was agreed by the committee, resulting in section 17B. The other two amendments, which dealt with introducing additional measures, such as community service orders and compensation for financial loss, gained some support, but they were not agreed.

Since stage 2, I have become aware of the different legal interpretations of the warning notice statement. Rephrasing the statement so that it applies to both parents has proved difficult. The amendments that I moved at stage 2 built on the research and consultation that is associated with the Children and Adoption Bill in England and Wales, which is passing from the House of Lords to the House of Commons, and I am sure that there will be a lot of discussion about the non-enforcement of contact orders and other points.

The Family Law (Scotland) Bill will be law shortly. On balance, the minister's suggestion that the lack of enforcement of contact orders should be addressed is constructive, even at this late stage—as long as there are no delays. Research will be important to provide the kind of data that at the moment exists only in England and Wales. More important is the Executive's proposal for a pilot project to investigate the role of a contact compliance officer. It is essential that that person works centrally in the court system and is more permanently involved than the existing curators.

It is vital to act quickly once a court order has been breached. A constituent of mine, who has campaigned for a long time on this issue, knows that long court proceedings—eight years in his case—can be not only financially costly, costing up to £50,000, but emotionally costly. Contact with his children has now stopped. I ask the minister to consider—

Photo of Sylvia Jackson Sylvia Jackson Labour

—that the views of individuals, such as my constituent, and groups who have been most directly involved with the non-compliance of contact orders, are important. They should be consulted as part of the on-going work. I hope that the Justice 1 Committee will take an active interest in this and other issues with which the bill is concerned. Can I take the opportunity to thank the convener of the Justice 1 Committee—

Photo of Murray Tosh Murray Tosh Conservative

No. That is not reasonable. We are very short of time.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I will keep this brief. I want to underline the concerns that Pauline McNeill and Sylvia Jackson have reflected in the debate and in committee. During my time as a member of Parliament and then a member of the Scottish Parliament, I recall a number of occasions on which a parent, usually a father, came to me to express concern that access to his children was being withheld and that the court proceedings were dragging on and on.

That in itself can change the dynamic. If a child has not seen his or her father—it is usually the father—for a number of months because the court has not had a hearing or taken action, that can change the outcome. The court might decide later that the circumstances have changed so much that it will not enforce an order. That is why I believe that speed is of the essence in dealing with these matters.

I welcome what Hugh Henry said about legal aid. I have seen cases where a father or mother has been frustrated in pursuing a legitimate interest in getting contact, simply because they cannot afford their costs, because the other party is going back to court time and again.

In welcoming the steps that Hugh Henry has taken, I ask that the situation be monitored carefully and that the Executive be prepared to come back to the Parliament with proposals for different action if the pilot that he is proposing shows that there is a problem that is not being addressed adequately in existing law.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I feel strongly that amendment 42, in the name of Pauline McNeill, and section 17B, should be in the bill. Amendment 42 seeks to speed up the agreement and enforcement of contact orders. That is in the best interests of children and, importantly, seeks to prevent unnecessary aggravation and trauma for both parties in emotional and financial terms. I do not believe that section 17B is unduly intimidating; it merely ensures that there is a clear warning that contact orders are serious and should not be ignored on a whim. I certainly want amendment 42 to be agreed to and section 17B to be retained in the bill.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I am opposed to both amendment 42 and amendment 15. I accept the minister's point that these matters are best left to the court, but it is important that we bring home to people that court orders are not granted on a whim. I do not think that doing so is intimidatory. Of course there is a problem with instances of mothers not granting contact to an absent father, but there is a bigger problem with fathers who apply for contact and then do not take it up; that is why we should ram home the importance of orders. That is a far more complex situation and it arises far more often. We should tell people that if they apply for contact and the court grants it, it is important to take it up. We should say to them, "You should not be watching the football live on television; you should be undertaking the obligation to your child. You should not be seeking to go away with your new girlfriend; you should be undertaking the obligation that you applied for."

Photo of Hugh Henry Hugh Henry Labour

The problem is that the same force would not come down on the father who did not turn up because he was watching the football, as would come down on the resident parent. We would be warning people about consequences that are completely and utterly uneven. That is the problem.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

We require not simply to warn of the consequences, but to stress the importance of the order. Having contact is an obligation that should be treated responsibly and with respect—the buzzword that is flying around this chamber and others. If someone applies for contact, the order should be adhered to. There should be a warning to mothers, but equally, there should be a warning to fathers. They would have the opportunity to take legal advice on the matter. It is important that we maintain an opportunity to make it quite clear that the contact order is important, not simply in the legal process, but in how we view parents' obligations to their child.

Photo of Patrick Harvie Patrick Harvie Green

I seem to be developing an unhealthy habit of standing up to support the Executive's position. I will need to think about that a little.

Pauline McNeill outlined clearly and powerfully why the issue is significant and why the Executive needs to provide an answer to people in the situation of not having contact orders enforced. However, the enforcement mechanisms that have been proposed during the bill's progress are not appropriate, so I will support the Executive. I ask the minister to say a little more about the timescale. Clearly, if research is being commissioned, it seems unlikely that we will get around to anything concrete in this session of the Parliament. When does the minister expect the outcome to be delivered? I hope that all members will bear in mind the necessity of keeping this issue on the agenda if nothing can be brought forward before the next election.

Photo of Marlyn Glen Marlyn Glen Labour 3:45 pm, 15th December 2005

Perhaps we should not be discussing something like this in such great detail at stage 3; we really should have dealt with this earlier. Again and again, people have said that the Family Law (Scotland) Bill is so big and complex that we needed more time to enable us to take it in sections and debate it properly in committee before we brought it to the chamber.

I want to bring some context to the debate. We are talking about only a small number of difficult cases. In more than 70 per cent of cases, contact arrangements are agreed between parents without reference to the courts at all. Of the remaining 30 per cent, the courts refuse only about 1 per cent.

I agree with the sentiments that Kenny MacAskill expressed, but I underline the minister's point that section 17B would not meet that requirement because it would not impact evenly on resident and non-resident parents.

I urge a note of caution about the idea of contact compliance officers. That sounds like a good idea but I would have thought that it required a lot of work. The part of the bill that is most important relates to the safety of the child. We are talking about safe contact. We must not forget that.

I am relieved that Pauline McNeill will not press her amendment. Although it is desirable to minimise delay in court processes, that must not be to the detriment of decisions taken. Time must be given to investigate closely all matters that impact on the child's safety, including domestic abuse, prior to making any contact order. That includes giving the child the chance to voice their views and giving proper consideration to those views. It could be absolutely counter-productive to have an expedited procedure.

Photo of Murray Tosh Murray Tosh Conservative

My regrets to the members who wished to participate in this debate but could not. I ask Hugh Henry to respond only to those specific points that he has to address.

Photo of Hugh Henry Hugh Henry Labour

On the question about the timescale, research will take some time. We will start that as early in the new year as we can. I give the chamber a guarantee that the compliance officer will start work as soon as we are able to scope the job and to recruit. The funding will be made available before the end of this financial year and the work will probably start in the next financial year.

Photo of Murray Tosh Murray Tosh Conservative

I ask Pauline McNeill to wind up as briefly as she can.

Photo of Pauline McNeill Pauline McNeill Labour

As I indicated earlier, I will not press my amendment, for the reasons that I gave.

On Marlyn Glen's point, I recognise that the court needs time in which to make important decisions. However, it should not cost an ordinary citizen the sale of their house to go to court to argue for contact with their children.

I welcome what has been said about research, which is important because we must have the facts. I acknowledge that a lot of work needs to be done, but I think that the announcement that there will be at least a couple of pilot schemes marks a significant and welcome shift in the Executive's position. I urge the minister to conduct one pilot in a large city and one in a rural area—I am sure that that would have been considered in any case.

I seek leave to withdraw amendment 42.

Photo of Murray Tosh Murray Tosh Conservative

Pauline McNeill has asked leave to withdraw amendment 42. Is that agreed?

Members:

No.

Photo of Murray Tosh Murray Tosh Conservative

The question is, therefore, that amendment 42 be agreed to. Are we agreed?

Members:

No.

Division number 7

For: Adam, Brian, Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Byrne, Ms Rosemary, Crawford, Bruce, Cunningham, Roseanna, Curran, Frances, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Gibson, Rob, Goldie, Miss Annabel, Gorrie, Donald, Grahame, Christine, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Lochhead, Richard, MacDonald, Margo, Martin, Campbell, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McFee, Mr Bruce, McGrigor, Mr Jamie, McLetchie, David, Milne, Mrs Nanette, Mitchell, Margaret, Neil, Alex, Robison, Shona, Rumbles, Mike, Scanlon, Mary, Scott, John, Sheridan, Tommy, Sturgeon, Nicola, Swinney, Mr John, Turner, Dr Jean, White, Ms Sandra
Against: Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Lamont, Johann, Livingstone, Marilyn, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Ruskell, Mr Mark, Scott, Eleanor, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 45, Against 74, Abstentions 0.

Amendment 42 disagreed to.

Photo of Murray Tosh Murray Tosh Conservative

Group 12 is on family relationship support services. Amendment 44, in the name of Stewart Stevenson, is grouped with amendment 53.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

The context of the debate has changed in light of the minister's announcement this morning of £300,000 to aid capacity building in the various family relationship services around Scotland. However, we must be conscious that there are 30 such services, therefore if the funding for capacity building were divided evenly—I recognise that it will not be—the amount given to each would be limited to £10,000. Of course, that would not secure the long-term future of the services. I am particularly interested to hear what the minister has to say about that.

I did not make a sufficiently accurate note of the minister's announcement this morning, so I am not 100 per cent clear whether it covers all three of the proposed subsections in amendment 44, which are on relationship counselling services, family mediation and contact centres. I recognise that, in many ways, contact centres might be the most costly service, but they enable the kind of contacts that we have just discussed—those that result from contact orders—to be facilitated and mentored by a third party. I suspect that contact centres strongly support the initiative that the minister adumbrated in discussing the contact officer pilot in group 11.

I do not think that I speak separately from the Justice 1 Committee on this subject, which the committee discussed again yesterday. The minute of the meeting records:

"The Committee agreed the importance of proper provision of family support services and to consider this matter at a future meeting following the passage of the Family Law (Scotland) Bill."

We assume that the bill will be passed—it is a widely held assumption—but we have not exhausted the subject by any means.

The minister has an opportunity to compare and contrast what might be happen in Scotland with what the Justice 1 Committee found is happening in Australia. Even I might agree that it is going over the top a bit to spend 300 million Australian dollars—if I recall the figure correctly—on the matter in a country that has twice our population. However, that puts into context the £300,000 that the minister announced this morning. Australia's system of dealing with matters is a three-stage process that is similar to ours. First, a court order is made. Secondly, if the court order is breached there is a fallback. Thirdly, people are sent to jail. Of course, Australia never sends people to jail.

Amendment 53 is consequential and I will say no more on it.

I move amendment 44.

Photo of Murray Tosh Murray Tosh Conservative

Before I call the next speaker I advise members that, all the interested parties having—I think—been consulted, under rule 9.8.4A I propose to extend the next deadline set out in the timetabling motion. The debate on group 13 will conclude at 4.10 pm. That does not mean that we have a lot of time. There will be two-minute speeches.

Photo of Mary Mulligan Mary Mulligan Labour

I am pleased to speak to amendment 44, but I make it clear that I will not support it, because the bill is not the appropriate place to put such measures. However, the discussion on the issue has shown that we need more information and research on which family support services we want and which services actually work. The Justice 1 Committee now understands the differences between the services that are provided, but I am not sure that everybody else understands them. Even Stewart Stevenson missed out one service that we discussed: pre- marriage advice. The other services are reconciliation services, mediation and family contact services, which all work differently, but which all have a contribution to make when relationships break down.

As we approached the end of stage 2, more and more information came before the committee. I thank Scottish Marriage Care for the information that it provided. It is clear that services exist that can be built upon, but it is also clear that there should be local responsibility for those services and that decisions on which services should be made available and how they should be provided should be taken locally. The Executive has already had discussions with the Convention of Scottish Local Authorities on the issue, but I press the deputy minister to take those discussions further. Some local authorities, such as South Lanarkshire Council, are innovative, but others do not make the efforts that they need to make for their local communities, which will ask searching questions of their councils.

We have often said that we want to know how legislation that we pass is implemented. As Stewart Stevenson said, the committee will consider the issue further. The committee can have a strong role in ensuring that services are available to support the legislation, which I am sure, the Parliament will pass today.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I appreciate the sentiment behind amendment 44, but I will not support it because, rather than channel funds for family support services through local authorities, we should give voluntary organisations such as Family Mediation Scotland and Scottish Marriage Care, which have representation throughout Scotland, the opportunity to bid directly for funding.

Photo of Christine Grahame Christine Grahame Scottish National Party

In answer to Margaret Mitchell's point, I comment that local authorities can commission the services of the voluntary sector. Amendment 44 tries to ensure a duty on local authorities to provide family support services, the provision of which, as Mary Mulligan made plain, is patchy throughout Scotland. That is particularly true of mediation services, which can remove many difficulties and shorten the amount of time that divorcing couples spend in court.

I want to return to an issue that I raised this morning on contact centres. I am worried that, if we do not put a duty on local authorities to provide such centres, the present situation will continue—in some areas, solicitors can make referrals to contact centres but, in other areas, solicitors simply do not have that facility. A contact centre can be important at the abrasive stage of a broken-down relationship, as it can allow the parents, on neutral ground, to work their way to a civilised method of contact with their children. The sooner we get parents who are in such circumstances to a contact centre, the better.

Finally, I ask the minister whether compliance officers will have a role with regard to contact centres.

Photo of Hugh Henry Hugh Henry Labour

To answer Christine Grahame's final point, we will scope that, but it is for the court to determine what is best and to try to resolve problems. The purpose of compliance officers is contact enforcement. They will report to the court, after which it will be for the court to determine exactly what happens.

We are committed to the delivery of high-quality public services, which is why we give a huge amount of support to local government through grant-aided expenditure, the changing children's services fund and other funding sources. Under the way in which we operate in Scotland, it is then a matter for local government—the democratically elected local councils—to deliver services locally. I recognise that it is for local authorities, working with partners, to determine their local service priorities based on local need. In that way, they can secure the outcomes that matter locally. Therefore, it would be wrong for us to build an infrastructure in which local services are funded directly from the centre.

However, I also acknowledge the point that Mary Mulligan made and that other members made in the committee, which is that local councils must be held to account locally, given that there are huge gaps in provision across Scotland. Stewart Stevenson also made that point. The question is whether it is for us to determine what happens in a local area or whether that is a matter for the council. The money that we put in will go towards trying to encourage the development of local services. As we have not quite finalised the arrangement, at this stage I would prefer that we put more effort into looking to help people to work through relationship problems by using counselling and conciliation services. We already spend money on mediation, which also has a contribution to make. We are not talking about a universal service that everyone should have; people need the service at certain times in their lives and in different ways. This is about local needs being responded to locally by those responsible.

I said this morning that I am arranging a meeting with COSLA to discuss concerns about patchy service delivery. Mary Mulligan mentioned the excellent way in which South Lanarkshire Council uses the changing children's services fund. Why have other councils not done the same? We give the money to local government to use as they see fit in local areas. Why is it that the arrangement can work very well in some areas but not in others? I want to explore that issue further. I know from talking to the convener of the Justice 1 Committee that the committee may well come back to the issue.

A statutory obligation on local authorities to provide services in a specific way would have significant financial implications, as they would come straight back to us to ask for more money. This morning I heard SNP members shout to Conservative members about what was, in comparison, a relatively modest financial proposal. The SNP members asked, "Where will the money come from? Have you costed the proposal?" We could say exactly the same about this proposal, which would involve a huge financial burden, for which there is no blank cheque.

I know exactly what Stewart Stevenson is trying to do. We sympathise with his aim and we will work to try to improve service delivery locally in an appropriate manner. We want new models of working. We want joint working and better integration of services such as counselling, mediation and conciliation throughout the country. We want more effort to be put in at the start of the process rather than at the end. That is why we announced the funding this morning.

Stewart Stevenson's amendments are well intentioned, but they would have completely the wrong effect. I worry about what the consequences would be if they were agreed to. Therefore, if he does not withdraw amendment 44 or moves amendment 53, I ask Parliament to oppose them.

Photo of Murray Tosh Murray Tosh Conservative 4:00 pm, 15th December 2005

I ask Stewart Stevenson to make the briefest of responses and to indicate whether he will press or withdraw amendment 44.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I do not read amendment 44 as determining a specific way in which services must be delivered, but as stipulating merely that they shall be delivered. I also believe that amendment 44 would mean that the services would need to be delivered not by the local authority but through it. I will press amendment 44 precisely because of the excellent services that I see in my area and the benefits that accrue to my constituents and people in neighbouring constituencies. A travelling caravan could be used to provide contact centres in rural areas—just as there are travelling banks and travelling libraries. Councils could consider providing services in a variety of innovative ways.

I press amendment 44 and encourage other members to support it.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 44 be agreed to. Are we agreed?

Members:

No.

Division number 8

For: Adam, Brian, Byrne, Ms Rosemary, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Ewing, Mrs Margaret, Fabiani, Linda, Fox, Colin, Gibson, Rob, Gorrie, Donald, Grahame, Christine, Hyslop, Fiona, Leckie, Carolyn, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McFee, Mr Bruce, Neil, Alex, Robison, Shona, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Turner, Dr Jean, White, Ms Sandra
Against: Aitken, Bill, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brocklebank, Mr Ted, Brown, Robert, Brownlee, Derek, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ewing, Fergus, Ferguson, Patricia, Finnie, Ross, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Glen, Marlyn, Godman, Trish, Goldie, Miss Annabel, Gordon, Mr Charlie, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, MacDonald, Margo, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Campbell, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGrigor, Mr Jamie, McLetchie, David, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Mitchell, Margaret, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scanlon, Mary, Scott, Eleanor, Scott, John, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 28, Against 87, Abstentions 0.

Amendment 44 disagreed to.