The Scottish Parliament Justice Committee has reported on its recent scrutiny of the Family Law (Scotland) Act 2006 – passing to its successor a strong case for a broad review of Scottish Family Law.

The committee invited written evidence from a range of legal academics and interested organisations, including Families Need Fathers Scotland, and held two oral evidence sessions.  Ian Maxwell of FNF Scotland took part in the second session.  Issues discussed included parental rights for unmarried fathers with children born before May 2006 and the requirement for a judge to take into account allegations of domestic abuse – or the prospect of domestic abuse – when determining the best interests if the child.

The Committee acknowledges that its scrutiny exercise was a rapid exploration of the effect and effectiveness of the Act but that the views that had been submitted to it had spilled over into a broader consideration of the state of Scotland's family law.

In effect, the Committee says, “It is a report to our successors on the next justice committee, setting out views on which aspects of family law covered in the 2006 Act they may wish to consider in more depth in the next session.”

Ian Maxwell, National Manager of FNF Scotland, said, “We are very grateful to the committee for undertaking this short, sharp exercise. The committee acknowledges that its conclusions are therefore more in the nature of observations than recommendations. However, we feel in time it may be recognised as an important milestone in the modernisation of family law in Scotland by opening up a range of fundamental issues for its successor to explore."

"It will give them the opportunity to take in new insights into family life as it is lived across Scotland, allowing the debate to move on from present entrenched positions. We hope that this will result in legislation that seeks solutions to problems that arise when parent separate that promote parenting rather than control it.”

In our response to Ron Park's petition on the rights of unmarried fathers to the Scottish Parliament Public Petitions Committee, Families Need Fathers Scotland suggests the child contact and residence law are now out of line with current knowledge of the benefits to children of the involvement of both parents after separation and with other Scottish Government objectives.

The relevant legislation has been overtaken both by social and economic changes within families in Scotland and by Scottish Government policy which now recognises more clearly the obligations of both parents to promote the wellbeing of their children and also their children's right to family life.

FNFS Scotland national manager, Ian Maxwell, says, “The 2006 Act in particular was legislation of its time. We point out in our response to the petitions committee it is salutary but dispiriting to read the official record of the debates on the Act, much of it couched in negative and hostile language that would be out of place today."

"Divorced and separated fathers have to deal with the consequences of that negativity when they discover in court they have to prove their worth as parents to do the same things after separation that were normal parenting before. They feel they are on trial.”

“Our experience is that the 2006 reforms to the 1995 Children (Scotland) Act have tended to polarise conflict between the parents rather than resolve it. The evidence is overwhelming that children prosper when both parents and their extended family are involved and co-operate with mutual respect and legislation should support that objective rather than place obstacles in its way."

"Parents need a route out of conflict so that, in the interests of the children, they will be able to co-operate with tolerance if not enthusiasm. Both mother and father have to be good parents long after the lawyers have gone home."

FNF Scotland believes it is time to bring family law in Scotland up to date to acknowledge  the overall benefits for children of support by both parents.   We believe a culture change is already under way that rejects the marginalisation of fathers.

English Appeal Court Judge Lord Justice McFarlane has called for an  end to the “Catherine Tate approach to post‐separation parenting”.

In a key speech to the Association of Lawyers for Children in June 2013, he deplores the situation where the parent who holds all the trump cards, because the child is currently living with them, simply shrugs her shoulders and says to the other parent, who merely wants to see his child, “Am I bothered?”.

Commenting on recent changes in England and Wales he says: "The system, the law, now requires them to be bothered. They have a responsibility to be bothered and if they persist in abdicating from that responsibility they can expect all those they encounter in and around the court system to bring them up short." 

His speech outlines the approach which will be taken by the newly created Family Courts in England and Wales, and the way in which the Children and Families Act 2014 will bring about a different approach in England and Wales by replacing "contact" and "residence" orders with "child arrangements" orders.

In his speech he refers to a recent judgement on an appeal from a father who had been denied contact with his two young children by the children’s mother for no apparent reason other than her refusal to engage in the process.

“Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child's needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say 'no' to reasonable strategies designed to improve the situation in this regard.”

He also make some favourable comments about fathers seeking contact with their children

"In particular, whilst deprecating some of their tactics, I had, in the course of a number of meetings, sat down in calm circumstances and listened to the stories of a number of fathers who considered that they had been profoundly let down by the system. Whilst it might be that there are genuine, child focused, reasons why individual members of the various fathers’ groups have been denied contact, that could not be said of most of the individuals I have met in that context over the years. There is, in my view, a core validity to the essential complaints that these fathers make."

Despite his surname, Lord Justice McFarlane has no remit within the Scottish court system, but we hope his comments will be heard by family lawyers and judges north of the border.

The latest set of results from the Growing Up in Scotland (GUS) study includes some information about families in which one parent is not resident with the children.

These results are from the latest group of children included in the GUS study, born in 2010/2011.  Their main carer, almost always their mother, was questioned when these babies reached 10 months of age.

21% of these families had a non-resident biological parent, in most cases the father. 57% of these parents had never co-habited and 91% had never been married.

Nearly a quarter (24%) of these children had no contact with their non-resident parent and a further 9% had contact once a month or less.

This study investigated the extent to which these non-resident parents were involved in their children's lives and how this was affected if there was a difficult relationship between the parents. 

Not surprisingly, non-resident parents who have poor relations with the resident parent are far less likely to be consulted about major decisions such as the child's immunisations or diet.

In a quarter of families where the non-resident father's name was on the birth certificate, he was never or rarely consulted about immunisations or his child's diet.  These fathers all have parental rights in order to carry out their responsibilities towards their children, but they are not being given the chance to contribute.

These results come from a study that doesn't make any contact with the non-resident parent.  Even so, it seems to show that a significant number of fathers are being shut out of their children's lives before their child has reached one year of age.  Asking the fathers about how much they are involved might show an even higher level of exclusion.

Parental responsibilities should be acknowledged by all parents, rather than being optional extras that are only respected when separated parents are getting on well with each other.