News Round 3

Same sex marriage Scotland  

The draft bill to allow same-sex marriage in Scotland was  published on 12th December  as part of a new consultation on the detail of ministers' proposals to be put to the Scottish Parliament. 

Article Journal Online 

Rise in child abduction

New figures reveal that the number of parental child abduction cases dealt with by the Foreign Office has risen by 88% in under a decade.

Source Foreign and Commonwealth Office

"The government has just introduced equal shared care" ... No it hasn't 

The Government intends to introduce a  statutory  presumption that both parents should normally be involved in the life of a   child in  England & Wales.  Last week  the Justice Committee raised concerns that this  would be misunderstood by parents  as a right to 50:50 equal time parenting. To illustrate the point within a matter of hours after the  Government announced its response to the consultation regarding  changes to the Children Act 1989 one father tried to exercise the right to equal shared care in court. 

Source Family Law

Sesame Street Tool Kit

Sesame Street has just launched a tool kit to help family, friends and others help children through divorce. 

Sibling Contact 

Vicki Straiton, solicitor, cl@n   writes about the legal obstacles in Scotland to separated siblings seeking contact with each other.  In this article she raises concerns that the obstacles aren't effectively addressed in the Children and Young People Bill.

Article The Journal Online 

Boris Johnson, Alex Salmond and shopping for divorce

Scottish solicitor Lucia Clark asks in her blawg Do rich divorcing wives fare better in court in London, rather than elsewhere in the world? Apparently not always.  Lucia is a dual qualified solicitor (England/Wales and Scotland) and deals with cases on both sides of the border. 

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The Sun's Comin' Over The Hill

Singer/ songwriter Karine Polwart recently headed the Guardian's Best World and Folk Albums of 2012 with her new album.   A number of years ago Karine worked for Scottish Women's Aid and at one point she worked with us at the  Edinburgh Youth Gaitherin. Her  songwriting is often influenced by her previous work with Scottish  Women's Aid. This is a great song about overcoming  adversities. 

Karine performed The Sun's Comin' Over The Hill at Cambridge Folk Festival this year. On cue the heavens opened and we all were drenched,  even those of us who were under cover!

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Children & Families Bill - Pre-legislative Scrutiny

Background - During  November 2011 the Family Justice Review panel published its final report setting out its key conclusions and recommendations for the family justice system in England & Wales. The review  was sponsored jointly by the Ministry of Justice  the Department for Education  and the Welsh Assembly Government. It was led by an independent review panel, chaired by David Norgrove.The panel was asked to consider reform of the current systems for:

• resolving disputes about contact with children and where they should live when couples break up (private law);                        
• the process of divorce; and
• processes when local authorities apply to the courts to take children into care (public law)

Earlier this year the Government accepted the majority of the panel's recommendations including  helping and encouraging parents to resolve their disputes outside of court, introducing Child Arrangement Orders, speeding up care cases and  establishing a Family Justice Board to drive performance improvements to the system  Child Arrangement Orders were recommended to do away with the loaded terminology of "residence" and "contact" which, it was said, create a perception  of winning and loosing. In the final report of the review panel  the earlier suggestion to change the law so there would be a clause  that children have the right to a meaning relationship  with both parents was dropped. To this the Government  responded by saying it intended to introduce a clause too this effect anyway.  There followed   consultation (see Government's response here),  the Children and Families Bill was  drafted  and yesterday the Justice Committee published it's report on the pre-legislative scrutiny of the Bill. 

Child Arrangement Orders -  s2(3) of the Bill reads  "child arrangements order means an order regulating arrangements relating to any of the following ; (a)  with whom a child is to live, spend time or otherwise have contact …  The Justice Committee thinks that the meaning of a Child Arrangement or Child Arrangement Order is unclear  and it's unlikely a change to the wording of orders from  will remove the perception of winners and losers within the family courts. CAOs wouldn't change how international law relating to children operates and there is  a risk that the change in terms  away from contact and residence may be hard to interpret in other jurisdictions.

Shared Parenting - The legislative statement "to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare" is to be inserted into the Children Act 1989 by means of s1a  Children  and Families  Bill. The Justice Committee sees no point to  this as it doesn't change the current position. The law already acknowledges that a meaningful  relationship with both parents is generally in a child's best interests. In the Co-operative Parenting Consultation one of the most common complaints is problems with enforcement rather than the order the court made. 

The Justice Committee concludes; 

187. In our view, it is unlikely that the draft clause on shared parenting, on its own, will change perceptions of bias within the family court system, many of which are entrenched. It is possible that, in combination with changes to MIAMs and Child Arrangements Orders, there may be an overall improvement however slight in perceptions, but on balance, we think that is unlikely. Although the draft clause could lead to a few parents reaching agreement because their perception of the likely outcome of the Court process has changed, given the fact that these will be cases in which there is already a high degree of conflict, this is also unlikely.

188. We have considered the problems raised by individuals who provided evidence of their experiences, and we believe that the absence of enforcement of court orders is a bigger factor in the perception problem than the content of those orders. This makes it regrettable that the Government has not brought forward draft legislation on enforcement for us to consider as part of this pre-legislative scrutiny. Considering our conclusions on all four questions, we maintain significant concerns about whether the draft clause is a necessary or desirable legislative change.

189. We consider that any legislation on this subject, when interpreted objectively, should retain the paramountcy of the welfare of the child, and should prevent shared parenting orders being made where the child is at risk of harm, and/or where, whatever the level of parental involvement, that involvement would not further the welfare of the child. The problem, as we identify it, is how the clause will be subjectively interpreted by parents who appear before the Court, or who agree arrangements for residence and contact without a Court order, but on the basis of what they understand the law to say and mean. The distinction is one of technical drafting versus the practical effect on real families. We recognise concerns about the inclusion of the draft clause, and we consider that if the Government includes the clause in the Bill as introduced, the revised wording which we suggest may reduce the likelihood of its effects being misinterpreted.

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Raise in Court Fees

The Scottish Government’s Fees Orders for Court of Session, Sheriff Court, High Court, Justice of the Peace court and Office of the Public Guardian  fees took effect from Monday 10 December 2012. That means in the Sheriff Court  the fees for an initial writ in an action of divorce or dissolution of a civil partnership are now £136,  or £104 under the simplified procedure. Initial writs in proceedings which are not prescribed in the table are £87.  Further information and fees tables available from the  Scottish Courts website.

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New Child Support Scheme

Yesterday saw the introduction of the new "gross income" child support  scheme (CS3). Initially only new cases with four or more children in the same family will be assessed under the new scheme. Once this is found to be working satisfactorily the new  rules will be applied to new cases  with with two or more children. Then  the changes will be applied to all new cases  and eventually there will be a gradual transfer of the existing cases.

Under the new rules  the paying parent's income will be established from the most recent Tax Return and child maintenance will be calculated on a lower percentage depending on the number of children. The definition of "child" has changed  so children continuing "non advanced" eduction will qualify for child support until the age of 20. That brings the rules in line with Child Benefit.


Child Maintenance and Other Payments Act 2008 (Commencement No. 10 and Transitional Provisions) Order 2012

Article Lindsays Solicitors 

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