Scots family law would benefit from codification, and it should be possible to overcome the obstacles that have stalled previous such projects

Devolution brought lawmaking closer to the Scottish people, with the creation of a new legislature that has more time to devote to domestic concerns than did Westminster, and Members of the Scottish Parliament have shown enormous industry in legislating.(1)

For child and family law, this meant reform proposals that had lain unimplemented for years finding their way onto the statute book, alongside other changes. Developments have included reforming the law on adoption, the position of non-marital fathers, protection of vulnerable family members, marriage, the grounds for divorce and civil partnership dissolution and the consequences thereof, and on cohabitation, both during the relationship and on its termination.(2)

The list goes on and, while these developments have led to more vibrant and modern legislative provision, one is reminded of the old adage, “Be careful what you wish for”, since the result has been a proliferation of legislation.

It is axiomatic, however, that sound law alone is not enough. Unless all members of the community have meaningful access to the law and the legal process, fine legal principles can amount to little more than abstractions. This is not a problem for the wealthy, since there is no shortage of legal professionals available to assist them in navigating their way through the legal system. But the vast majority of the population facing child and family law problems have limited resources – or none at all. Ensuring that they have access to the law and the legal process is the real challenge facing the legal system.

There are, essentially, three elements to consider: access to the law itself, access to legal services and access to the legal process. The second and third of these have received considerable attention. Family lawyers are all too aware of the changes in legal aid that have led some practitioners to restrict the amount of legally-aided family law work they undertake, or to avoid it altogether.(3) As a result, potential clients have been forced to use alternative sources of legal advice, with some of that advice being provided by lay persons rather than lawyers. Readers of the Journal will be thoroughly familiar with the, sometimes controversial, recommendations of the manifold bodies that have devoted so much time and energy to reform of the court structure, court procedures and the funding of civil litigation,(4) and the resulting legislative and other activity.(5)

In the light of these developments, it is curious that the first, crucial element of an effective legal system – access to the law itself – has attracted so little government interest. The more accessible the law, the less time lawyers will have to spend interpreting and applying it, with obvious savings in the cost of legal advice. The more user-friendly the law, the more feasible it will be for suitably trained lay advisers to provide assistance to those who find lawyers beyond their reach. It would be naïve to suggest that the law can be expressed so simply and succinctly that all members of the public would be able to understand it and all its attendant implications without assistance, but the clearer the law, the greater the hope that some might. This failure to focus on the way the law is presented is all the more perplexing, since it could be addressed through the relatively simple expedient of codification.

The problem

The basic problem is one of complexity: that is, finding the current statutory provision on a particular aspect of Scots child and family law is often far from straightforward. A statute is passed on a given topic and is usually supplemented by secondary legislation, with the primary legislation being amended by other statutes as the need arises. Over time, the law becomes scattered across numerous statutes and statutory instruments and one often has to cross-reference between an array of documents in order to establish precisely what the current provision is.

This is a source of frustration to lawyers and it renders aspects of the law almost impenetrable to all but the most determined lay person. While a Government website offers the text of statutes as amended,(6) it carries the warning that it is not necessarily up to date, and the secondary legislation appears on the site in its original, unamended form. Collections of statutes, duly updated, are published commercially, but they are either expensive or highly selective in terms of content.

Every family lawyer will have his or her own favourite example of this process at work, and the following is cited by way of illustration. It will be remembered that the Children (Scotland) Act 1995 sought to bring together legislative provision on children in the family setting and child protection. The content of parental responsibilities and parental rights, their allocation and the criteria for resolving disputes over them were addressed in a single statute, alongside the various protective mechanisms designed to deal with the problems in the family and how the courts and the children’s hearing system were to respond.

In its original form, the 1995 Act empowered the court to grant various orders relating to child protection: a child assessment order, an exclusion order, a child protection order and a parental responsibilities order. The last of these was found to be problematic and it was replaced by the permanence order, the details of which are located in the new Adoption and Children (Scotland) Act 2007,(7) which reformed adoption law. Then, two of the remaining child protection orders were moved to the Children’s Hearings (Scotland) Act 2011, which effected a comprehensive reform of the hearings system. As a result, the current four orders aimed at child protection are now scattered over three different statutes.

Quite apart from this fragmentation rendering the law less accessible than it might be, it creates the opportunity for inconsistencies and omissions to occur. So, for example, while the Matrimonial Homes (Family Protection) (Scotland) Act 1981, applying originally to spouses and different-sex cohabitants, was extended to civil partners in 2004,(8) same-sex cohabitants had to wait a further two years to benefit from its protection.(9) Then there was the issue of decrees of dissolution of civil partnerships being granted without the requisite evidence from a third party. That omission from the statutory instrument has now been corrected,(10) but the validity of some 100 dissolutions remains in doubt.(11)

The solution

Like other jurisdictions, 21st century Scotland needs a subtle and nuanced corpus of child and family law, balancing predictability and flexibility and capable of being applied to a rich variety of relationships in which people find themselves. In large part,(12) the actual content of the law is achieving these goals; the problem is the rather messy way the law is presented. The solution lies in codification, bringing all the existing child and family legislation together, along with the few remaining common law rules, in a single statute or code.

Back in the mists of 1992, the Scottish Law Commission – in reality, the lead commissioner on the project, Professor Eric Clive – devised a blueprint for a Scottish Child and Family Code.(13) The idea was resurrected in the early years of this century, as part of a broader plan to draft a Civil Code, again under the auspices of Professor Clive who by that time had retired from the Commission and was a visiting professor at Edinburgh University.(14) He began fleshing out the blueprint and drafting the relevant child and family law provisions, but the results were never published. The idea of a more comprehensive civil code was shelved, at least for the time being, largely due to a lack of political will to do anything about it.(15)

This governmental apathy, if not antipathy, towards codification is not confined to civil law. The Draft Criminal Code for Scotland with Commentary(16), written by a group of respected Scottish academics, was published in 2003. A decade later, there are still no plans for legislation to implement it.

What is the source of this general reluctance to codify? A conspiracy theorist might claim that those who understand the law have an interest in retaining the privileged position their knowledge gives them.(17) Thus, government agencies can keep the masses at bay if the latter do not understand their rights. Similarly, family lawyers derive status, power and employment from being privy to the complexities of the law that are a mystery to others. Yet closer examination reveals any such interest to be illusory except in the most abstract sense. Dealing with confused and frustrated members of the public makes the job of overworked civil servants more, not less, difficult. Lawyers, often being paid on a “block fee” basis,(18) gain nothing by expending time juggling complex, interlocking statutory provisions.

As is so often the case, the real reasons are far more mundane. There are simply no votes in codification, since it is too theoretical to have popular appeal. It would require the allocation of resources, but the savings that would result – and there is no doubt there would be savings – are too speculative. In addition, the obvious agency to undertake a codification exercise, the Scottish Law Commission, may not have the time to undertake a project of this magnitude. But the Draft Criminal Code was produced without calling on those resources, and there was tacit support for it from the Commission when it made the text available on its website. While the Commission noted that it was unable to commit resources to the Civil Code project, it was again supportive and agreed to have an observer on any steering committee.(19) Undoubtedly, shepherding any code through the Scottish Parliament would also take time, but so does passing an endless stream of ad hoc legislation.

A familiar argument against codification – that it would lead to stagnation of the law – has hardly proved to be the case in codified legal systems. The Netherlands, for example, had no difficulty in becoming the first country in the world to introduce same sex marriage. Indeed, future law reform would be simpler and more comprehensive if it required amendment to a well structured code, since it would avoid the need to amend countless statutes with the inherent risk that something important will be missed in the process. Another argument against codification is that it would result in a radical shift in the legal culture.(20) But child and family law is already in statutory form, and it is difficult to see how interpreting a comprehensive statute or code would differ greatly from what is done at present.

There is the difficulty that not every aspect of child and family law is the province of the Scottish Parliament, with matters like child support and assisted reproduction being reserved to Westminster. Scottish independence would remove that problem at a stroke but, even if that does not come to pass, there is scope for further adjustment of legislative competence in a unified United Kingdom.

There are, of course, many practical and policy questions to be answered before child and family law is codified. Should the process be approached incrementally, by means of codifying statutes on distinct aspects of child and family law, rather than all at once? Would a degree of “tidying up”, rationalising anomalies and inconsistencies, be part of the process? To what extent should it involve reform of the law, as opposed to simple restatement?(21) Many of these issues have been addressed by Professor Clive and others,(22) and none is insurmountable.

Wanted: a combined effort

Human relationships are complex and varied, and the rules crafted by the legal system must necessarily be subtle and nuanced if they are to deal adequately with the range of situations presenting themselves. It would be naïve indeed to suggest that this sophisticated legal provision can be reduced to a simple set of rules, fully intelligible to the whole population without assistance.

There will always be a need for advisers from the legal profession and elsewhere to help members of the public in navigating their way through these legal provisions. As we face increasingly scarce resources, there is a pressing need to remove unnecessary obstacles faced by these advisers in carrying out their task. The inaccessibility of aspects of child and family law is one such obstacle, and codification would address it, rendering the law more user friendly, with resulting efficiency and economic gains.

Nor can codifying child and family law be left to vagaries of the political process. It requires all of those currently working in the field – judges, members of the legal profession, lay advisers, civil servants, and academics – to embrace codification and work together in taking the process forward.

References

(1) Alan Page refers to "an explosion in purely Scottish law making": A Page, "A Parliament that is Different? The Law-making Process in the Scottish Parliament", in E E Sutherland, K E Goodall, G F M Little and F P Davidson (eds), Law Making and the Scottish Parliament: The Early Years (Edinburgh University Press, 2011), p 30.

(2) See E E Sutherland, "Scotland: The Marriage of Principle and Pragmatism", in E E Sutherland (ed), The Future of Child and Family Law: International Predictions (Cambridge University Press, 2012).

(3) In 2010, a survey conducted by the Family Law Association found that 29% of solicitors who responded reported that they had stopped taking legal-aided family law cases, and many more indicated that they were thinking of doing so. See Lucy Adams, "Family Lawyers drop legal aid", The Herald, 6 April 2010.

(4) The most significant are, of course, the Report of the Scottish Civil Courts Review (Gill Review) (Edinburgh: Scottish Government, 2009) and the Report of the Review of Expenses and Funding of Civil Litigation in Scotland (Taylor Review) (Edinburgh: Scottish Government, 2013).

(5) Legal Services (Scotland) Act 2010, Criminal Justice (Scotland) Bill (SP Bill 35), the draft Courts Reform (Scotland) Bill, Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No 2) 2013 (SSI 2013/139), Act of Sederunt (Sheriff Court Rules) (Lay Representation) 2013 (SSI 2013/91).

(6) See the UK Statute Database at: http://www.legislation.gov.uk/

(7) 2007 Act, ss 88-104.

(8) Civil Partnership Act 2004, Part 3.

(9) Family Law (Scotland) Act 2006, s 34.

(10) Evidence in Civil Partnership and Divorce Actions (Scotland) Order 2012 (SSI 2012/111).

(11) "Drafting Error Puts Dissolution of Civil Partnerships 'In Doubt'", Scottish Legal News, 28 November 2011.

(12) There are exceptions, of course, and the position of the non-marital father is ripe for re-examination. Similarly, a case can be made for revisiting the current legal provision for cohabitants: E E Sutherland, "From 'Bidie-In' to 'Cohabitant' in Scotland: the Perils of Legislative Compromise", (2013) 27(2) International Journal of Law, Policy and the Family, 143.

(13) Report on Family Law (Scot Law Com No 135, 1992), Part XIX.

(14) E M Clive, "Current Codification Projects in Scotland", (2000) 4(3) Edinburgh Law Review 341, at p 343.

(15) E M Clive, "Thoughts from a Scottish perspective on the bicentenary of the French Civil Code" (2004) 8(3) Edinburgh Law Review 415, at p 418.

(16) E M Clive, P Ferguson, C Gane and A McCall Smith, Draft Criminal Code for Scotland with Commentary (Edinburgh, 2003). While not "published" by the Scottish Law Commission, it is available on the Commission’s website.

(17) For a discussion of "the lure of ambiguity", replete with apposite and amusing quotations, see, K Stevenson and C Harris, "Breaking the thrall of ambiguity: simplification (of the criminal law) as an emerging human rights imperative" (2010) 74(6) Journal of Criminal Law 516, pp 522-527.

(18) Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2003 (SSI 2003/178).

(19) E M Clive, "A Scottish Civil Code", in H L McQueen (ed), Scots Law into the 21st Century: Essays in Honour of W A Wilson (Edinburgh, W Green, 1996), and Clive, "Current Codification Projects in Scotland", note 14 above, at p 342.

(20) Clive, "Current Codification Projects in Scotland", note 14 above, at pp 345-346.

(21) Quite reasonably, Professor Clive is of the view that it would make sense to implement "reforms desired on policy grounds" at the same time as codifying: Clive, "Current Codification Projects in Scotland", note 14 above, at p 343.

(22) See P T Richard-Clarke, "Access to justice: accessibility" (2011) 11(3) Legal Information Management 159 and W Voermans, "Styles of legislation and their effects" (2011) 32(1) Statute Law Review 38.
 

The Author
Elaine E Sutherland, Professor of Child and Family Law, Stirling Law School, Scotland (elaine.sutherland@stir.ac.uk), and Professor of Law, Lewis and Clark Law School, Portland, Oregon (es@lclark.edu)
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