| Previous Section | Index | Home Page |
Mrs. Ewing: I am delighted to hear that there will be an extension of the service to Grampian. The Minister and I have been in correspondence about the extension over several years. Can he say how many qualified and trained mediators will emerge from the new project? It is not merely a matter of talking to somebody; we need people with qualifications. Will the Minister comment on that?
Lord James Douglas-Hamilton: I shall be happy to make inquiries and to write to the hon. Lady with the precise detailed facts that she requires.
As a Government, we believe in marriage and the family as the proper foundation for a civilised and responsible community. For this reason, we propose to offer additional support totalling £50,000 to marriage guidance in Scotland. We believe that this will help to save marriages that still have hope of reconciliation. We shall shortly be advising the individual organisations about this.
Sadly, a proportion of marriages nevertheless break down. Marital breakdown is a cause of distress, and it is exacerbated when there are children of the marriage. Our policies have generally been designed to ensure fairness to both parties when a marriage breaks down. This underlies the Family Law (Scotland) Act 1985. We have also promoted the need to consider the welfare of the marriage, and this principle is given legal status in part I of the Children (Scotland) Act 1995. It is generally accepted that where a marital breakdown is acrimonious, this is more damaging for the children. We therefore want to minimise the opportunities created by the law for acrimony between the parties.
In the 1985 Act we provided that the matrimonial property should be shared fairly between the parties to a divorce. The Act provides that fairness demands equal shares, but the court has a wide discretion to make orders meeting the actual needs of the parties. One of the factors to be taken into account is the burden of caring for children, which may fall more upon one party than upon the other. In the Child Support Act 1991 we removed the issue of child maintenance from the divorce courts. This was another means of reducing the scope of litigiousness between the parties.
In part I of the Children (Scotland) Act we have created a clear framework for the welfare of the children of a marriage to be the paramount consideration for the court in making orders concerning children. The Act sets out in sections 1 and 2 the responsibilities and rights of a couple as parents. Those responsibilities and rights should normally survive separation and divorce. Each parent is given an active responsibility to promote the child's continued relationship with the other parent. Ideally--this is a most important message--the parties should agree arrangements between themselves for the continued discharge of parental responsibilities and rights.
Part I of the Children (Scotland) Act embodies the concept of minimum intervention by the court. Only if it appears to be in the interests of the welfare of the child should the court intervene. This reinforces the fact that the burden of making appropriate arrangements for the children now lies with their parents. The parents should explore all avenues and agree as much as possible between themselves before approaching the court. There may even be no need for the court to be involved, other than to grant the decree of divorce.
Most importantly, if it proves necessary for the court to be involved, part I now requires the court to take into account the views of the child--if the child has sufficient understanding and maturity to express these and wishes to do so. There is a presumption that a child over 12 has sufficient maturity. It is no longer possible for the parents and the court to develop proposals for the child without the child being given the opportunity to be consulted, except in the case of very young children and those who cannot understand what is going on. Similarly, before reaching any major decisions which would affect their children, parents are required under section 6 to take into account the views of their children.
It is against that background that we reaffirmed the important place of family mediation services in various remarks in this House and in the other place. We fully accepted that such mediation services have an important part to play in making certain that couples discuss any difficulties that they have concerning the future of their children. That reduces the scope for acrimonious litigation and the consequent harm that that can cause the children caught up in separation or divorce.
For some years now, rules of court have enabled the court to refer parties to mediation at any stage during the process where questions arose about children in a family action. That rule has been re-emphasised with the commencement of part I of the Act by enabling the court to arrange a hearing at a very early stage of a case, to take out of contention the issues between couples involving children and thus to maximise the possibility of early resolution of such matters. We will monitor the effectiveness of court referrals to mediation as part of our general evaluation of the Children (Scotland) Act reforms.
This may be an appropriate time to point out that neither the primary legislation nor the rules of court prescribe which organisation is to provide the mediation.
My hon. Friend the Member for Eastwood drew attention to the fact that Family Mediation Scotland is the major player in family mediation in Scotland, and that through its affiliated services it has a very important part to play in our programme of reform. There is another source of mediation through solicitors who are members of Comprehensive Accredited Lawyer Mediators, otherwise known as CALM. They may provide mediation if either party is referred by their solicitor or the court.
We are currently funding a research programme to study the effect of participation in mediation, whether provided by Family Mediation Scotland affiliates or by accredited lawyer mediators. That research is proceeding well and we believe that it will be successful in providing qualitative evaluation. It will also look for evidence that mediation is more cost-effective than traditional dispute resolution through the legal process in Scotland.
The qualitative arguments for mediation are, to my mind, every bit as important as any financial arguments. It appears intuitively likely that a mediated agreement between couples about such issues as care of children after separation or divorce is likely to be a better quality agreement and to be more durable. We shall look for evidence of that from the research that is in hand.
Mrs. Ewing:
I am very interested in what the Minister is saying about the assessment that will be made. Will it include an assessment of the implications for aid and assistance? As constituency Members, most of us find that legal aid is often one of the major problems, from whichever direction it comes. Will an assessment be made of that?
Lord James Douglas-Hamilton:
On the subject of legal aid, as the hon. Lady and my hon. Friend know, in the White Paper on crime and punishment we have undertaken to consult on civil legal aid. Proposals for the future funding of family mediation is one of the issues that could be covered in that consultation. I hope that that will be of assistance.
One challenge that I would like to offer to Family Mediation Scotland in its future development concerns the matter that I mentioned earlier of considering the views of children. If it is to play its full part in these reforms, it will need to develop ways of ensuring that parents accept their responsibility to take the views of children into account in reaching mediated agreements.
I have already announced extensions to the funding of Family Mediation Scotland affiliated services from social-work-related grants, but I am all too well aware of the arguments that that is not a satisfactory long-term basis for funding these services. We have had extensive discussions with Family Mediation Scotland about the suitability of seeking to fund its services by charging the parties. That would unlock the possibility of its being funded as a legal aid outlay where the reference is made by the court or by a solicitor acting for a legally aided party.
While Family Mediation Scotland has seen some scope to introduce charging for its services, I understand that it does not regard this as a way of securing the future of the local services. It stresses that mediation is most effective
introduced early in the process of divorce and separation, when it is unlikely that the parties will have approached a lawyer. We have noted those points.
We have also noted the support that Family Mediation Scotland has given to the approach south of the border, where the availability of mediation will be explained to parties seeking a divorce when they attend the compulsory information session at the beginning of the process. The Lord Chancellor intends mediation to be funded through block contracts with the Legal Aid Board, and to be subject to tests of means.
We have not yet decided whether it is right to reform Scots family law in line with what has been done in England and Wales. In Scotland we have a background of less acrimonious divorce generally than south of the border. In 1995 around 65 per cent. of divorces in Scotland were on the grounds of non-cohabitation, but we accept that that percentage falls to 47 per cent. in relation to couples with children.
| Next Section
| Index | Home Page |