Scottish Churches Parliamentary Office, Edinburgh - Briefing Document Eleven

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Parliamentary Officer:Rev Graham Blount
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Briefing Document No 11 - Page 2 of 5

"Parents and Children" - Continued.

There does not yet appear to be strong support in Scotland for a completely "no fault" system, as south of the Border - at least until experience there has been evaluated. But there is a presumption that the use of current "fault" grounds by 54% of couples with children deepens acrimony, and so has a negative effect on children. Few in the churches would want to deepen any culture of blame in this context, but some argue that children, left with their mother after she has been abused or deserted by a father who has gone off to set up home with someone else, may not be best served by a process which can be viewed as pretending that responsibility for the break-up of the family is equally shared.

One new issue, raised by a legal respondent to the previous consultation and now presented as a question, is whether the "fault" grounds of adultery and unreasonable behaviour should be merged into a single fault ground. This was originally argued on the basis that "a technical act of adultery could not nowadays always mean the breakdown of a marriage" (Prof Norrie), and is presented in the White Paper as a possible way of recognising the "complex reality of relationship breakdown" and avoiding the contrivance of "proof" in order to speed up divorce.

Again, differences of view may exist between those who see the uniqueness of adultery as, arguably, the only Biblical basis for divorce being eroded by such a step, and those who would welcome the avoidance of pretence, or of dragging such allegations through the courts, as being more helpful to the children. It is not clear whether, after such a change, courts would view adultery as constituting, of itself, conclusive evidence of "unreasonable behaviour".

A suggestion in the earlier consultation, that the provision to the court of information about the arrangements for the children should be a necessary part of any divorce proceedings, has, perhaps surprisingly, been dropped - on the basis of practical difficulties raised by some legal respondents.

2. Mediation

The previous consultation asked whether there should be a new statutory basis for funding "family mediation and marriage support services". Although there was strong support for adequate funding of these services, there was some concern that (a) it might be difficult to draw the line between marriage support organisations and those providing more general family support and (b) a distinction should be drawn between mediation (which should have statutory funding, like legal aid) and marriage counselling (which should remain as before).

The current proposals may have narrowed the focus, "to develop a strategy for the funding of voluntary organisations providing services to families in transition, especially mediation, and to underpin the strategy with a new statutory power"; the priority is said to be "the provision of services that reduce the potential damage to children when families are in transition". While previous church responses suggest that we would welcome such a strategic approach, there may be concern if this is limited to "when families are in transition" (an interesting euphemism).

This may be the point to argue that, if "family breakdown damages children's life chances" (1.4), more effort should go into preventing such breakdown (eg in marriage preparation and support before a crisis). We have been told that the Executive would not refuse such funding purely because of the religious basis of a group, "so long as its aims were compatible with Executive policy".

The section on mediation is the only one which actively seeks to support marriage. We may wish to pick up on the suggestion made by some in the previous consultation, that what is needed is a holistic approach which, while recognising the limits of what laws can accomplish in this area, looks in more depth at how legal frameworks and Executive policy can help people to build and sustain stable, committed relationships as well as attempting to ease the pain when they come to an end.