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Contemporary Issues In Family Law


In the run-up to the forthcoming general election, Scottish Secretary Jim Murphy - delivering a speech to Labour think-tank Progress - stated that:

“Family is the most important thing in our country. We love our family more than anything else.”

This statement rings true in the sense that because “family” represents one of the central underpinnings of Scottish society, it is unsurprising that reform has occurred on a multitude of different fronts. For example, recent statutory enactments have implemented such diverse changes as permitting adoption by unmarried couples contrasted with the introduction of a prohibition forbidding sex-selection for non-medical purposes in the context of assisted reproduction. The definition of “family” is a nebulous concept. It does not remain static, but instead adapts in response to societal, political and cultural influences.

Owing to the fact that developments are continuously transpiring over a wide variety of areas, this paper will examine two particular areas in greater depth, namely the rights that have recently been afforded to same-sex couples and the development of child protection legislation over the last 15-20 years.

The Civil Partnership Act 2004: Bridging The Equality Gap?

The introduction of the Civil Partnership Act 2004 was a significant landmark in the evolution of Scottish family law. This legislation, whilst arguably long overdue, cannot be said to comprise part of a piecemeal approach as there had been no similar legal measures previously in force. One of the major criticisms which could be levelled at the CPA 2004 as it applies to Scotland is the absence of measures dealing with parental responsibilities and adoption. Although provisions have been subsequently enacted in respect of these areas, it is submitted here that the consolidation of the complete spectrum of civil partners' rights within a single legislative instrument would have contributed significantly towards social acceptance and familiarisation of these pioneering changes in Scots family law.

It is acknowledged that Scotland was entering uncharted legal territory through the adoption of the CPA 2004. Nevertheless, the progressive conferral of additional rights on same-sex couplesunfortunately provides opposition groups with numerous opportunities to publicly voice their disapproval. Consequently, it is feasible that the continual projection of these opinions into the public domain could maintain or even exacerbate the stigma already surrounding these relationships.

Despite the advent of this legislation, it has become abundantly clear that civil partners' rights are still the subject of major castigation from various sectors of society. It was somewhat inevitable that some of the most vociferous criticism of the CPA 2004 would emanate from certain quarters of the religious community. For example, one churchgoing commentator avers that the CPA 2004 actually undermines the sanctity of the holy sacrament. Further evidence of religious discontent can be discerned from comments attributed to Cardinal Keith O'Brien who bemoaned societal changes which have:

“promoted alternative lifestyles whilst undermining values which for generations have been treasured.”

Partly as a result of such vehement opposition, civil partnership ceremonies cannot be conducted on religious premises in Scotland. The issue therefore arises as to whether this provision is discriminatory in respect of same-sex couples. Indeed, there are a number of organisations which support the legalisation of same-sex marriage and a campaign is currently underway aimed at petitioning the Scottish Parliament to lift the prohibition which prevents marriages between same-sex couples in Scotland.

In theory, understanding the gay community's desire for the legitimisation of same-sex marriages is relatively straightforward. However, it is important to bear in mind that the implementation of the CPA 2004 is representative of a major sea-change in social attitudes. It can quite confidently be stated that the legal recognition of homosexual relationships in Scotland would have been an unthinkable concept even fifty years ago. That being said, it is evident that negative homosexual stereotypes still persist in society today. A report commissioned by Stonewall revealed that 55% of those questioned believed that homosexual prejudice was still prevalent amongst the general public.This finding is validated to an extent through the establishment of a working group by the Scottish Government tasked with formulating recommendations on how to best tackle discriminatory attitudes towards homosexuals in Scotland.

Proceeding with this argument, it is highly doubtful whether same-sex marriages will ever be legalised in Scotland. Notwithstanding the fact that the term “gay marriage” is itself paradoxical in nature, the institution of marriage is one of the fundamental bedrocks of Scottish society and has endured for hundreds of years. It has been submitted that the establishment of a separate legal status for homosexual couples could endorse the view that these relationships are perceived as ‘less important' than those of heterosexuals.However, besides causing a political and religious furore, an amendment of this nature could threaten the cultural significance attached to marriage. Due to these undesirable consequences, civil partners may have to accept that the maximum level of parity in this respect has already been reached, especially in light of the continued practice of exclusionary rules for religious purposes contained within the forthcoming Equality Bill which is currently weaving its way through Parliament.

Same-Sex Couples - Acquiring Significant Rights On The Domestic Front

On a more positive note, the CPA 2004 has introduced measures which greatly enhance the legal status and rights accorded to civil partners. For instance, a civil partner now has occupancy rights identical to those enjoyed by a spouse in a conventional marriage. In the context of succession, same-sex companions now enjoy equivalent status as that of the surviving spouse as well as the application of legal rights upon the death of their partner. These modifications represent several noteworthy steps on the ladder towards equality between persons of differing sexual orientation.

Turning now to the position of same-sex cohabitants who have not registered in a civil partnership, the reform of Scottish family law in this area was originally considered a problematic proposition.Granted, it is a double-edged sword in certain respects. First and foremost, it undoubtedly leaves both parties in a stronger position should the relationship be terminated for whatever reason. S.29 Family Law (Scotland) Act 2006 bestows a discretionary power on the court to make an order in favour of the surviving cohabitant where the deceased partner dies intestate. The application of this provision was effectively illustrated in the recent case of Savage v Purches although on this occasion, it was held that the pursuer was not entitled to a portion of the deceased's estate after all the relevant factors had been taken into account.

Perhaps the most contentious aspect of these reformative measures has been the decision to homologise the competing claims to the deceased's estate from a same-sex cohabitant and any surviving children.Evaluating this change from the perspective of the same-sex partner, this is an obvious improvement from the previous position. Yet the alternative hypothesis is advanced here that in the struggle for equality, legislators may have overstepped the mark on this occasion by inadvertently devaluing a child's right to legitim. As one observer has highlighted, the FL(S)A 2006 appears to be implicitly biased towards children.

In summary, this section has only examined several significant aspects regarding the recent proliferation of rights afforded to same- sex couples. Due to the parameters of this paper, it has not been possible to discuss other noteworthy topics such as “gay parenting” or adoption. What is certain is that the reform of civil partners' rights has not been a gradual process, albeit it is a welcome one. It almost seems as if it was necessary to coerce the law into reforming this aspect of family life. Irregardless, it is hoped that the introduction of the CPA 2004 will help to foster a more tolerant society in Scotland.

Child Protection Legislation And The Ongoing Struggle To Eliminate Child Abuse

One of the central underpinnings of Scottish family law is that the welfare of the child is of paramount importance. Regrettably, child abuse manifests itself in many guises and whilst a multitude of tactics are being utilised to tackle this problem,this discussion shall focus on child protection legislation in the context of abuse occurring within the family home.

In sharp contrast to the above analysis of the CPA 2004, which could quite rightly be described as a “groundbreaking” piece of legislation, the legal protection of children from abuse in Scotland has developed intermittently. When it comes to safeguarding children from domestic abuse, the key difficulty is that whilst statutory protective measures may be sufficiently comprehensive, there is unfortunately no definitive method to completely eradicate child mistreatment. In other words, the law is by no means foolproof in this respect.

This fact has been tragically illustrated over the last several years by two widely-reported cases occurring on both sides of the border. On the 31st December 2009, Robert Cunningham was sentenced to ten years imprisonment after he was convicted of the culpable homicide of toddler Brandon Muir who died from horrific injuries including a ruptured intestine.This shocking incident worryingly shares similar characteristics with the earlier case of “Baby P” who similarly died as a result of suffering a horrendous level of domestic abuse. Thankfully, the appeal against conviction of one of the accused has recently been dismissed, the court holding that:

“These crimes were simultaneously incomprehensible and truly appalling. The sentence of life imprisonment was merited…”

It logically follows that these abhorrent episodes of abuse emphasise the inability of the law to solely provide adequate protection for vulnerable children. Genuine progress will only be made upon the adoption of a mutually collaborative approach towards the elimination of child abuse. As one government report has stressed, the three central components of child protection - namely the children's hearing panel, the criminal justice system and child protection services - are not in sync with one another. However, last year's announcement regarding the establishment of a Vulnerable Person's system is an encouraging sign that child protection services shall enjoy a greater degree of coordination in the future which will hopefully facilitate the delivery of a more robust and effective service. In its current state, it cannot be said that the law is comprehensive in the context of child protection.

Regulating Child Protection - Walking A Thin Line?

Approaching this topic from different angle, the enactment of child protection measures is also challenging in the sense that it is essentially a task of balancing two adversarial considerations; namely the extent to which the State should intervene to ensure that the welfare of a child is maintained contrasted with an individual's guaranteed right to privacy and respect concerning their private life. This legal predicament is clearly exemplified by the recent debate on the physical chastisement of children which was brought into sharp relief as a result of the decision in A v United Kingdom where the court ruled that a stepfather's disciplinary methods amounted to torture under Article 3 E.C.H.R.

In 1992, the Scottish Law Commission suggested that parents should not be able to invoke the defence of ‘parental chastisement' where, inter alia, an implement is used or where the child is likely to suffer serious injury or harm as a result. Around ten years later, subsequent measures were introduced in Scotland which criminalises the use of excessive physical force as a deterrent measure against children. Unsurprisingly, the application of this provision provides a patent example of the inherent struggle between State interference and the preservation of fundamental human rights. It is interesting to note that according to the NSPCC, 73% of adults believe that it is cruel to smack a child aged between one and four.On the assumption that this information accurately reflects public opinion, it is conceivable that shifting public attitudes served as the catalyst for this legal innovation, in much the same way as the CPA 2004 discussed above. Yet the flipside of this argument is that the implementation of a ban prohibiting the physical punishment of children will be construed by many parents as an attempt to curtail the use of a disciplinary measure which has been consistently and effectively applied for generations.Consequently, it will be fascinating to observe how the courts interpret this legislation.

It is postulated here that human rights considerations will play a prominent role in the future development of child protection law in Scotland. Moreover, meaningful enhancement may depend on the increased apportionment of liability to State authorities who fail in their duty to safeguard the welfare of the child. This scenario came to pass in the Scottish case of E v United Kingdom where the European Court of Human Rights stated that:

“…a failure, over four and a half years, to protect children from serious neglect or abuse of which the local authority were aware disclosed a breach of Article 3…”

Indeed, one observer has submitted that such a practice may evolve into an important facet of Scottish family law in the future.Notwithstanding the fact that local authorities should be severely rebuked in light of gross procedural failures, as occurred in the “Baby P” case,the progression of family law in this fashion could place local bodies in a precarious position in the sense that they may find themselves subjected to judicial proceedings which stem from allegations of unwarranted intrusion into an individual's private life alongside the more anticipated complaint of State inaction. The difficulties surrounding this scenario have been articulately surmised by one writer who aptly points out that no local or social work authority is entitled to remove a child from their parent's care in the absence of parental consent or a court order. Yet had the local authorities employed conduct of this nature in the case of Peter Connelly or Brandon Muir, and consequently prevented their tragic deaths, would there have been a great deal of protest?

Concluding Remarks

There has undoubtedly been a marked and sustained progression of Scottish family law over the last 15-20 years. With each amendment passed, the lives of many a Scottish citizen have been significantly improved and long may this pattern continue. Without detracting from the substantial progress made as a result of these improvements, family law in Scotland is by no means the finished article, and through no fault of its own.

From the above analysis, it has become apparent that family law shall forever be infused with - and influenced by- the political, social, and economic considerations of the particular time period. This paper has demonstrated that legal regulation in itself does not possess the capability to establish a consistent, fair and effective body of “family rules.” This objective shall only be achieved through the continued integration and cooperation between the legal, political and frontline care systems. Hopefully future developments shall ensure that this process transpires as smoothly as possible.


Academic Textbooks

Griffiths A., Edwards L., Family Law 2nd edition Thomson/W.Green: Edinburgh 2006

Hiram H., The Scots Law of Succession 2nd edition Tottel Publishing: HAYWARDS Heath 2007

Scoular J., Family dynamics: Contemporary Issues in Family Law Butterworths: Edinburgh 2001

Thomson J.M., Family Law in Scotland 5th edition Tottel Publishing: Haywards Heath 2006

Journal Articles

Bainham A., ‘Removing babies at birth: a more than questionable practice' Cambridge Law Journal 2008, 67(2), 260-262 at p.260

Bamforth N., ‘The benefits of marriage in all but name? Same-sex couples and the Civil Partnership Act 2004' Child & Family Law Quarterly 2007 CFLQ 133

Clive E., ‘Family law reform in Scotland - past, present and future' Juridical Review 1989, 2, 133-149

Constantine Y., ‘Civil Partnership Act 2004: housing rights and family occupation rights for same-sex couples' Journal of Housing Law 2006, 9(5), 79-83

Hiram H., Guthrie T., ‘Property and cohabitation: understanding the Family Law (Scotland) Act 2006' Edinburgh Law Review 2007, 11(2), 208-229

Inglis A., ‘Personal injury claims for child protection failures' Scots Law Times

2009, 29, 173-176

McKnorrie K., ‘What the Civil Partnership Act 2004 does not do' Scots Law Times 2005, 6, 35-40

Scott-Joynt M., ‘The Civil Partnership Act 2004: dishonest law?' Ecclesiastical Law Journal 2007, 9(1), 92-94

Tobin B., ‘Same-sex couples and the law: recent developments in the British Isles' International Journal of Law, Policy and the Family 2009, 23(3), 309-330


Challenging Prejudice: Changing Attitudes towards Lesbian, Gay, Bisexual and Transgender People in Scotland, Recommendations of the LGBT Hearts and Minds Agenda Group, Scottish Executive, February 2008, ISBN 978 0 7559 5671 5

“It's everyone's job to make sure I'm alright” - Report of the Child Protection Audit and Review, Scottish Executive, November 2002

Living together - British attitudes to lesbian and gay people, Stonewall, 2007

Report on Family Law (Scot Law Com No. 135 1992


‘Cardinal calls on Executive to “give unequivocal support to marriage”' Scottish Catholic Media Office 29th December 2005 available: accessed 26th February 2010

‘Conspiracy child sex charges “significant use” of law, says Angiolini' The Journal Online 11th May 2009 available: accessed 1st March 2010

‘Enhancing child protection' Scottish Executive 10th March 2009 available: accessed 27th February 2010

‘Fair treatment for same-sex couples' Equality Network 14th June 2006 available: accessed 24th February 2010

‘Record number of adults say smacking is cruel' NSPCC 7th October 2008 available: accessed 2nd March 2010

‘Toddler's killer given 10 years' BBC News 31st March 2009 available: accessed 27th February 2010

‘What we want' Equal Marriage Scotland accessed 26th February 2010

Newspaper articles

Bennett R., ‘Officials who failed Baby P are forced out' The Times December 2nd 2008

Craig O., ‘To smack or not to smack' The Daily Telegraph 13th April 2008

Maddox D., ‘Jim Murphy plays the religion card to win votes' The Scotsman 23rd February 2010

Picken A., ‘Clock ticking as family battle to halt gay adoption' The Scotsman 3rd February 2009

Rozenberg J., ‘Judge calls for law to recognise gay partnerships' The Daily Telegraph 4th Aril 2003