After section 17

Part of Family Law (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:30 pm on 15th December 2005.

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Photo of Hugh Henry Hugh Henry Labour 3:30 pm, 15th December 2005

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.