 If you would then all settle down, I've going to welcome everyone to the Justice Committee's 9th meeting of 2016. Can I ask everyone to switch off mobile phones and other electronic devices? Apologies and receive from Margaret MacDoogall. I am item one, decision and taking business in private. I'm inviting the committee to consider items five and six in private. Item five is consideration of recent correspondence. It is consideration of committee's draft legacy report. Are you agreed? Item 2, Family Law Scotland Act 2006, our first item of business today, an evidence session on the Family Law Scotland Act 2006, looking mainly at two particular issues, cohabitation and parental responsibilities and rights. This is a round table format, although I should advise that Tam Bailey regrettably can't attend to children's commission or can't attend today due to personal reasons. I'm going to start first of all by saying that some of you have been here before for a round table session. Other people have not. What to do is, if you want to speak, just indicate to me, I'll put you on my very special yellow sticky list and I'll call you so. Don't worry, and if I miss you out, my clerke will notice you as well or the deputy convener, so we will get to it. I give you sometimes advanced notice you're being called. It's more of an interactive session with the members of the committee keeping stoop most of the time, which is a novelty. I'll start by introducing ourselves. I'm Christine Grahame, I'm the convener of the committee, and I'm Maria Weiss, convener of the committee. I'm Stephen Brown from the Law Society. I'm Margaret Jones, member of the committee. I'm Jennifer Gallagher from the Family Law Association. I'm Roderick Campbell, MSP for North East Fife, and I'm a member of the committee. I'm Kirsty Malcolm, advocate. I'm Gil Paterson, member for Clydeback and Mulguite, and I'm a member of the committee. I'm Christian Alad, member of the Parliament for North East Scotland and of the committee. I'm John Loudon, gang parents apart. I'm Ian Maxwell, family's need father of Scotland. I'm Alison McInnes, MSP North East Scotland and member of the committee. I'm Louise Johnson, Scottish Women's Aid. I think that as you've all mentioned your constituencies, I'm the member for Midlothian South Tweeddale and Laudie. What about you, Ms Murray? I'm a member of the Food and Fisher. Yes, exactly. There you are. There's a grievance brewing there. Now you would all notice, I hope, a behaviour yourselves. Now you'll see we're coming to the end of this session and there are a bit sort of de-mop happy. You would notice as you spoke, your light comes on automatically, so you don't need to press any buttons. So I'm going to start just by asking who would like to start off. Well, is everything absolutely wonderful with family law in Scotland? I take it it is, because you've not indicated you want to say there's anything wrong with it. Is that correct? Thank you, Ms Johnson. Part of the law you want to start with first. Obviously, we've put in a response in relation to contact section 11780 of the 1995 act as amended by the Family Law Scotland Act. And also shade parenting and our concern is that, as we have voiced in our response, is that despite the best efforts of the Parliament and the issue of domestic abuse was recognised by the then Scottish Executive in the need for reform in relation to domestic abuse was recognised by the Parliament and this committee, the amended section 11 of the 1995 act is not working. Now, there's nothing intrinsically wrong with the law. As far as we can see, it's really just attitudinal practice. Again, it's, I think, ingrained almost views about domestic abuse, that domestic abuse is a dispute as opposed to what it is, is a safety issue, very much affecting the welfare and protection of children. In relation to the shade parenting agenda, we're very clear that anything that we say is very much in relation to domestic abuse. Child contact issues where domestic abuse is not an issue is not really in our provenance, as it were. What we're concentrating on is shade parenting. What we're concerned about is that any move to shade parenting would be a shift from the consideration of the principles round about the welfare of children, the child-centred approach. In relation to the welfare of the child being the paramount consideration, account must be taken of the child's views and the court should make no order unless to do so would be better than not making our order. We're concerned that blanket proposals for shade parenting would ignore the child's rights under the 1995 act, the UN convention of the rights of the child. It wouldn't take into account domestic abuse and the very well-recorded and evidenced matters that post-separation contact or post-separation domestic abuse is an enormous issue for women, children and young people experiencing domestic abuse and a huge safety concern for children and young people. Is there any more to comment on that? Yes, Mr Brant? First of all, I think that the law society is delighted to have this meeting because this is one of the items that they identified in their priorities document for the future Parliament. I think that one of the issues that Louise was talking about was perhaps the way in which the law is interpreted and actually works in practice. It may be more an issue of how that is interpreted rather than the actual substance of the law itself. As a practising slister, I am also on Lord Brailsford's committee of the civil justice committee. We are very conscious that children's views, for instance, are a difficult subject. We are actively looking at the ways in which children's views can be heard and the way in which they are ingathered. We are looking actively at the F9 document at the moment, with a view to changing it. It is a document that goes out to children who are mature enough to express a view that is usually about 11 or 12 years old. If their parents are seeking an order from the court, the sheriff is bound to consider the views of the children, and it is a question of how they can gather those views of the children, which can be important. A document is sent out. Can I ask you how that form is filled in without the influence of, say, the parent that has them at home, to ensure that it is independently filled in by a child? That is a whole issue. It is very difficult. If a child lives with one parent, the suspicion is that the parent is influencing the document, so it is a question of how we go about getting the views of the children. There are lots of issues around that. I am also on the family law committee of the civil justice council, so I am very well aware of the work that is going on there. I think that that is a good opportunity and there have been submissions probably from all the people around this table at it. The form F9 is not a wonderful method. I think that Families Need Father Scotland recognises the importance of children's views, but we also consider that there is, particularly in high-conflict contact disputes after separation, that there is also a real need to protect children from being asked to choose between parents. The worst possible thing is for children to be asked, which parent do you want to live with? The other concern that we have is—I think that this was referred a bit by Stephen—the influencing of children and children who are under strong influence of one parent. Even when their views are given, they are not necessarily reliable. We would point to a research paper that was produced by a specialist in England who dealt with a lot of child contact cases and talked to a lot of children who had been involved with the disputes. Children who had completely refused to want to have anything to do with the other parent, whether it was both fathers and mothers getting rejected in this way. Once they were talked to by an independent person in a safe environment away from the caring parent, a very high proportion of them changed their views and returned to wanting to see a parent that they had previously had a strong loving relationship to. Therefore, there are various pitfalls in ascertaining the views of children, particularly in the context of contact disputes. There is effectively a wholesale reform going on of the various forms that are in use both in the court of session and the sheriff court, which is the form F9 and the court of session has an equivalent. It is recognised, certainly, that within the Faculty of Advocates is being a wholly inadequate document, because the view now very much is that you need to assess whether the child wants to give a view first and foremost and then set up the most appropriate way to obtain that view. Rather, a blunt instrument that is this form does not achieve that outcome, which is why the reform of it is being considered in other committees elsewhere. The views that are coming back from the initial consultation on that are very positive in terms of the review that is being considered and taking a two-step process rather than just issuing a form and saying, do you want to express a view yes or no, taking an approach that allows a view at the child to express whether they want to give a view, because not all children want to get involved. Secondly, focusing on the best mechanisms for taking that view, which picks up on Iain Maxx's point that it is not taking a child out of a difficult environment will quite often be the only safe way to ensure that a proper view is taken without influence. It would be helpful if you just explained if that form is filled in. Does that mean that men mean the sheriff or the judge mean not necessarily to speak to the young person? Or have I done, if you still have welfare hearings and it does not still do that? Is it just an indicator rather than an affidavit, let's see? I am just asking what the status of that is. Yes, Mr Brann. The form is filled in and then sent to the sheriff. The sheriff then decides what he wishes to do with it. You also get issues of confidentiality as well. The sheriff sometimes is unsure whether to express those views to the parties. Of course, sometimes the child wants their views to be kept confidential so that there is a whole range of issues that are quite tricky. You are all nodding, which is from people that I thought might have different views, but you are nodding, and you are nodding, all agreeing that this is a bad thing, or counterproductive, or misleading. The form F9 is in a very bald and very unchilled friendly form. The questions are not in the type of language or the way that is understood to be asking children questions. You do not ask children straight questions like do you want to do this. It is really about exploring the nature of their relationships, the quality of the relationship and asking what their concerns are, as opposed to just saying yes or no. Children, even in domestic abuse situations, are very conflicted because they would possibly like to see their dad, but they do not want their dad to be abusive to them and their mother, and they want to be safe. Putting a lot of stress on children to give a yes or no view is not appropriate. The questioning of children should be done by those who are trained in this. Again, asking questions of children is a particular skill and a nuance. There has been nothing wrong with taking an independent view. Interestingly enough, there is also research from England and Wales on taking views of children. Interestingly enough, when children said, in domestic abuse situations—I have to be very clear, I am talking about domestic abuse—when they said that they wanted contact, even where domestic abuse was present, it was granted, but when they did not want it and domestic abuse was present, it was granted anyway. There is the waiting of the views in England and Wales. Right. It is not Scotland. We have, unfortunately, anecdotal evidence a lot of it. Again, this is the whole problem about section 117 and how domestic abuse is actually taken into account in the courts analysis of the welfare principle and the best interests of the child. There is research from Scotland that has been carried out by the Scottish Commissioner for Children and Young People, which reflects the same position. I will take Mrs Loudon. Is it Mrs or Ms? When we attended meetings in 2006 for the law act, children first did a presentation about family group conferencing. We were told at that time that it had a 90 per cent success rate, so why can something along those lines not be used to help to find a solution for children in those situations? It would be any family member who had contact with the children pre-separation of the parents, any school teacher or nursery teacher, any sports group that they attended, anybody that was involved in the child's life that could see how they interacted with parents, family, what might have been picked up on their behaviour problems, anything like that in their life. Everybody discussed it, so why can't everybody get together to find a solution? I am looking at the lawyers, and how would that work in practice? What would the court process be? Those disputes are court disputes and that is why they are there. Is that a practical mechanism that they can use to take the views of children, which can include a sheriff or a judge speaking to the child? That, I would suggest, is probably the least common route adopted these days. There is the use of reporters and there is just a whole raft of new rules coming in relation to that, which hopefully will facilitate an improvement in the quality, perhaps, of the reporting that is undertaken. Those are people appointed through the court to meet with the children, meet with the families, and, although they do not do it as a group, they will do it with each parent, with the people involved with the child. Sometimes they will speak to teachers, sometimes if there has been social work involvement they speak across the board. On the basis of that, they pulled together a report that is then presented as independent evidence to the sheriff or the judge who can use that to help formulate a view. It is not an area of practice that I work in most regularly. In terms of how that now works in practice, I am not probably the best person to speak to it, but that is the mechanism that I am familiar with. In theory, it should work quite well. However, the problem is that sheriffs vary in their interest in family law, so that the application by the sheriffs is tricky. Some sheriffs are not interested at all and are just wanting to get through their case load, and other sheriffs take a lot more interest in family law. Most family law slisters would prefer if there was some degree of specialisation so that those cases were coming before sheriffs who were particularly interested and indeed trained in family law. We get a lot of variety of decisions partly because of sheriffs. I have not practised a long time ago in family law 17 years ago, and at that time there were specialist sheriffs who kept going with cases. Is that all with or done of iron? Unfortunately not. In Edinburgh and Glasgow, there are specialist family sheriffs, but for most areas outwith the main cities, you can get a variety of sheriffs. Some will not keep the same case from hearing to hearing, and you will get a wide variety of sheriffs and experiences. I can refer back to a point that came up in a number of the submissions. The adversarial nature of family proceedings, particularly when they reached the proof stage in the family courts, and a number of the people making submissions suggested that if the more we can move away from that, we have already adopted the child welfare hearing in the Scottish courts, which is far more up a collaborative process. I think that there is a fundamental difference in family court cases. They are looking at the future. Often in a court you are trying to resolve a dispute that has happened in the past or a crime that has happened in the past. A family case is actually looking at what is going to be happening with those children in relation to those parents in the future. To have them in a way that is going to be constructive, I agree that family group conferencing is great, but once they have reached the court stage, getting everybody around the table in a collaborative form is more difficult. We would point to some of the other jurisdictions in other parts of the world where they have adopted quite a radical change in the way they conduct all the court proceedings in family cases. What you are trying to do is to help and support the parents to make things work, as well as to solve their disputes. I am trying to get us to focus more. I absolutely understand a range of views around the table, but as you are away, we are looking at some stuff regarding section 23 concerning unmarried fathers, rights and so on, the responsibility and rights of parties and the role that you have touched on, which is domestic abuse and making contact and residency orders. I would really like to focus on those because it was the academics that we had previously—I have called them the academics, it is a bit rude, but you know the professors that were before us who raised those issues to some extent. If I could go back and focus on some of that, do you want to come in on that, Mr Maxwell? At one point that I was particularly keen to come in on, the 2006 made great progress in recognising parental rights and responsibilities for unmarried fathers, but as we pointed out in our submission, there are two major problems that will persist until we reach 2022 when all the families have grown up that were before the change in date. One problem is that if you have a father, some of whose children were born before 2006, when the law changed, others born afterwards, the father effectively has a mixed parental rights for the younger children, not the older one. We know, for instance, of fathers who have been given care of their children by the social work department because the mother was unable, but the social work department said, we cannot help you to sort out the legal stuff, so the father has got a partial sort of, you know, he's got a mixture of rights and responsibilities and not having them. And the other question we had, we raised, was the cross-border one because the law changed over a year earlier in England and Wales. So, and these days, families often move between Scotland and England. The family that moves to Scotland, the fathers' parental rights, which were there in Scotland, disappear when they cross the border. We feel that it was a real, it was a great lacking in the 2006 legislation that the position was not made retrospective and covering all fathers, rather than relying on the, you know, only from the May 2006 change over date. You see, the bogey word in law is retrospective and I would like somebody to come in about that, making something retrospective, which seems, there's maybe a just case here for it, given the example that you've just given us. I think it's a bit crazy to have a situation where you've got parental rights for one child and not the other just because of the date in which they're born, but how you get around that, I'm not sure. Make it retrospective or do you make it apply in certain cases, just in cases where it's applicable to the children of the relationship, not just generally, I don't know. I'm not drafting legislation, thankfully. Ms Malcolm, do you have a comment on that? I suspect that this is the lawyer in me making it retrospective. I think it wouldn't be a useful approach. There would be mechanisms available if a parent found himself in that situation not necessarily perfect, but you could simply apply for an order in relation to parental rights and responsibilities and there are mechanisms within the 95 act for agreement to give a parent parental rights and responsibilities. One assumes, however, that Mr Maxill may be talking about situations of conflict where agreement may not be possible, but certainly there would still be the scope for a straightforward application to have a grant of parental rights and responsibilities in that sort of circumstance. Border, which was another issue that Mr Maxill raised. I'm not sure if you understand his point on that. Do you like to make your point again? The law changed earlier in England, so you could have a father who is content in having his parental rights and responsibilities, an unmarried father. The family moves to Scotland and splits up and because the date in Scotland is later, when you're considering his position in the Scottish court system, he no longer has these parental rights and responsibilities. We've found that sometimes it's simply just not brought up in court and the court assumes it's okay, but it is also in some court cases the parental rights have disappeared as they go across the border. I think that if you find yourself as a parent with parental rights and responsibilities under the law of any country, they will normally be given automatic recognition across a border, whether that's between England and Scotland or Europe and Scotland, it shouldn't make any difference. Another thing that we find in courts is that we have come across fathers when they have raised the question of parental rights and responsibilities in court, rather than actually being granted them, which is roughly possible under the 2006 legislation, instead the sheriff gave them a mandate that gave them all the powers but not the actual piece of paper. That was maybe a mistaken approach on the part of the sheriff, but going to court to get these things sorted out is expensive, time consuming and also raises further conflict in the family. I'm going to bring it. Did you indicate before, Ms Gallagheron, we missed you? Oh, there you are. See, I don't feel so bad now, making it look as if I'd ignored it. No, no, no, no, I'm not wanting you, Margaret. Not yet. I'm just going to say from a practical point of view, I have dealt with cases quite often where you have a father coming in, where he has parental rights and responsibilities in relation to some of the children but not all of them. In practice, what we have done is, as Ms Malcolm has suggested, to simply make the application to the court for parental rights and responsibilities, and it doesn't seem to present any significant issues. I take the point that Mr Maxwell makes that it is an expensive process going to court, and I think that the availability of legal aid, for instance, for a lot of fathers, does cause practical problems in making or getting access to the courts. Once you get there, I don't think that there's any real issue with it. That legal aid is a thorny issue, isn't it? It does deter people if they're just above the limit for having assistance. Mr Brand. One of the issues, however, is that if you have an unmarried father at the moment, the mother can go and register the child's birth unilaterally without any discussion with the father, and she can also name the child. Those are two issues that can cause problems. I wonder whether there should be something in the law that requires that or allows the mother to do that only if there's no objection from the father. If necessary, if there's an issue about paternity, whether the law should provide for DNA to be taken as well. I know that this has been a discussion in the previous session of the Justice Committee, but I think that that's something that might need to be looked at. Professor Norrie was pushed to the wall and he agreed that there should be compulsory DNA and he tried to come back from that position. It was difficult once you said it, of course, but are you talking about compulsory DNA so that all the leavers are in the hand of the mother? Unless there's cause shown why it shouldn't be the case? I would like to reflect the position that we voiced in relation to the bill before the act was passed about our concern about the extension of parental rights or that there are granting of it, without any concomitant protection in relation to children where child contact or parental rights and responsibilities are an issue, which is why the amendment to section 11 was created. Given the fact that it is still not working, the issues that we raised and we raised in 2006 remain. Unless there's an enormous problem where unmarried fathers are across the boards and swathes are being refused to register the birth with the mother, it's my understanding that a name can't be put in the birth certificate unless there's consent, so the mother couldn't go and unilaterally register the father unless he was there. I'm sure that people have disputes about Jordan's name regardless of the situation. In relation to DNA testing, this came up in a petition in 2014, and the Law Society supported the reform that broadens the tools and mentioned the DNA testing, but it is subject to the best interest test of the child. We would have concerns about the article 8 rights of the child and just to interfere with the child as a person if a forced DNA test had to be taken place and how something like that could unfortunately be used by those who were determined to do so to continue to abuse children after separation. What's actually your position? We wouldn't support compulsory DNA testing. We would be very concerned about the interests of the child. There would have to be very clear safeguards to make sure that the welfare of the child and the circumstances in which it was taken were done at all. So a presumption perhaps rather than a presumption subject to the various caveats of Putin? The law is not keen on presumptions because we wanted a presumption in the bill against the granting of contact where domestic abuse was an issue. The minister at the time was very clear, in fact, that he said that at the time this was about the presumption that we wanted. We share the Justice Committee's concerns about the dangers in introducing presumptions into the aspect of family law. We wanted a rebuttable presumption in relation to contact, and the minister at the time said that rebuttable presumptions would, in fact, interfere with current charitable procedures. The law is not keen on rebuttable presumptions. I can't use the word now. It's just to pick up on a point that Mr Brann said about the naming of the children. On separation and when a party moves on, they can change the child's name as well without permission of the father. I think that needs to be looked at in some cases. You don't need anything in Scotland. You just start calling the child by different name. Does the committee want to ask anything? Roddie? Just a small point on the law society submission that we talked about, the rights of siblings. How important an issue does the panel think that is? It's the right of a sibling, so I don't have a question. I'll apply for an order for contact. In a situation where you might have a 14-year-old child wanting to see their 10-year-old brother or whatever. At the moment, it's not possible to be done through the courts, so that's another issue that perhaps should be looked at. Any other questions? The committee doesn't want to ask anything. I'm looking around. Margaret, this is your cue. You must have something to ask. I'll just throw in picking up on Mr Maxwell's point. The more of a pushing for mediation and alternative dispute resolution, it seems that we've talked about this forever in civil law, but we've never actually somehow got it going. What would we need to do to try and facilitate this so that it doesn't get to the position where the parents are at loggerheads with each other and the child is the very last person that is thought of in the equation? Any suggestions? Some countries do have compulsory mediation at this stage. I can understand that there are concerns about that, but we have recently seen the legal aid board introducing far firmer provisions to try and ensure that both parties have tried mediation before they go to the family court. Similarly, we often come across sheriffs who will say that to parties before they'll start a child contact action. Have you tried mediation? The mediation services are also run by voluntary organisations depending on year to year funding and often in very tight circumstances, so we would certainly support more financial support towards mediation. We see a growth in lawyer mediation, but it seems to us more a growth in enthusiasm for lawyer mediation rather than the actual practice of it. Obviously, one of the barriers there is cost. In some cases, the legal aid board will fund lawyer mediation. In other cases, we want to see swift solutions to family disputes rather than great long waits to get into court. We would also like to see more family sheriffs, more specialisation, because plenty of the people who come to us say that they see half a dozen sheriffs in front of the case. That is a complete waste of everybody's time that each time round you're dealing with a different person who hasn't got the viewpoint. We also see, to praise some family sheriffs, that we come across some sheriffs who take control of the case, who act using the authority of a sheriff and in some cases are trying to counter bad behaviour of quite often both parents or one parent. We would see that it is a complicated issue, it is a difficult one and legislation is not always the answer. A lot of it lies in the hands of the individual sheriffs and how they handle cases. We see some very good practice but also some problems in the system. I think that in practice, where you get sheriffs who are experienced family practitioners before they go on to the bench, who have an interest in the area, you find the quality of the decision making is far better. I found this very depressing having practice in this specialised pretty well 17 years ago. I thought that we were well on our way and the family law association was just being set up. The sheriff who continued with the case was much more useful to all parties than you find it a completely fresh one who was busy rustling through the paperwork to go it. I find it quite depressing that all this time has passed and we seem to have stood still at the best. I did practice in Edinburgh and you're saying that in Edinburgh and Glasgow it's okay but elsewhere. I understand why, because that sheriff is dealing with criminal cases all in the one day but that seems to be very depressing. Also mediation, which I dealt with again way back the decade ago and we seem to have got stuck. How do we unblock all this? We're at shrievel training and timetabling the sheriff to ensure that the sheriff follows a case through and they're trained. But what about mediation? How do we move that on from the blockage? It's very difficult to say. I think that Ian Maxwell has hit on a number of things. The mediation services that we have are not properly funded. There are some areas in Scotland that have very few mediation services and I think that there are funding issues as well that are important. I'm actually a specialist mediator myself and have been for about 20 years. I think that Mr Maxwell is correct in saying that there has been more uptake with slisters so that there are now more slister mediators but the volume of work is still fairly limited. How successful is it? It can be very successful. It can be very successful. The point about mediation is that it is a voluntary process. Compulsory mediation, i.e. the court sending people to mediation, is not so successful. However, if people are prepared to sit down and discuss things, then that's fine. There may be partly an education thing. People are talking about clients coming in who are more aware of mediation and they are asking more than they were 10 years ago. I still think that there could be an exercise in trying to educate the public more about different methods of resolving disputes. We also have collaborative law as well, which is a hybrid of that as well. Of course, Margaret. If common sense is not prevailing and we have all seemed to be aggrieved round the table, that would be a good way forward. Should we look at it from a preventative spend aspect and also collect the data where mediation has been used and has had successful outcomes? If we have the evidence and it is a preventative spend, it seems to me that the door should be more open than it has been in the past. Before I come to you, I want to come to Mrs Loudon, because grandparents often feel that sometimes they are bad and they can cause problems in these, and sometimes they are victims as well. It is not clear. Do you think that grandparents should be involved in mediation if that is possible? I do not know if they are embraced in that. Some areas do intergenerational mediation, but a lot do not, because they do not have the knowledge to do it. Often, in a dispute situation, the grandparents are the only stability that some children would have, so the fact that they can be easily pushed to the side with nothing, there is no support system to help to resolve the matter. I think that it can only harm the child if that is the only support system. The more mediation, family support, general family education, how to resolve conflict, how to appreciate another person's opinion, just to get around the table and help people to communicate again. Sometimes it can be a silly thing that sets off a big argument, and if you do not talk for too long, it gets blown out of all proportion. A little bit of mediation around the table, somebody else acting as a mediator between family members is all that it would take. Under section 11 of the 1995 act, any one of the interests can apply for contact. Do grandparents do that? Is it successful? We have a little bit more success over the past two or three years. Before that, it was still a bit potluck. It depends on which area you are in, which court you are in, which sheriff you get. However, we have been hearing about it more often. It is a successful outcome. I think that the Government is saying that promoting the idea that grandparents are important in the family unit, but it does not put it in paper to say that it is important that they are part of the family unit. I think that they can be easily discarded and easily pushed to the side without any coming back. I would like to sound the caveat about the use of mediation in relation to domestic abuse. The problem is, again, that domestic abuse is often tagged as being conflict, as opposed to being what it is, which is a misuse and exercise of power and control. Mediation is definitely not recommended where domestic abuse is an issue, because mediation relies very much on equality between the parties and equal power standing between them. If you have one person who has more power and is able to sway, unfortunately, it is not for the best interests of the other person or the child. Do not forget that children's voices are not heard in mediation, which is another issue, and because women have to mediate every day just to get through the life with the abuse, having them to put in that situation is, I think, not the best interests of the child and not their interests. We would say that, to enable training, the bench absolutely would endorse that. Again, so sheriffs are aware of what constitutes domestic abuse and what is conflict, because the problem being that in child contact the historical abuse or abuse that is being carried out is not taken into consideration into post-separation contact. If abuse has happened, it will continue. Evidence research experience shows across the board that that will happen. It is just not being taken into consideration and also training for lawyers. There are some exceptionally good lawyers. Unfortunately, there are some who just do not get domestic abuse and regard it as the warning parties than the mother's hostile because she will not agree to contact. It is very destructive on children. The reviews are not taken into account and it is dangerous. We would certainly support the awareness-raising training solicitors, the bench and specialised families sheriffs as well. I want to bring in John Finnie and then Christian Allan. I want to move on to cohabitation and the rights under that, as opposed to under managed certificate. I am coming to John Finnie and then to the bench yourself. John Finnie, you are next. Then it is Christian Allan. You put your hand up after him. I am getting a French look. It is a supplementary, but what shows on John Finnie? John Finnie was just in another category. Right. You see that he is a gentleman. Thank you very much. No, I just heard what was just said about children's voices not being heard in mediation. That's very important because we talked about children's standard. So how can we have mediation if the children are not involved? If there is a way to involve the children in mediation, I would like to hear some voices about that. I'd ask Mr Brandt. It's not prohibited that children can be part of the mediation, but generally the idea is that it is the parents that are trying to resolve the issues for the children in mediation. Most of the time? Usually, yes. And it is voluntary. I mean, you can't, although I take your point about something that might feel that it happens. That was against the idea of having children's standard legislation if you've got a mediation where children are most of the time excluded. So is this the right way to robot it or not? I think that if you've got an older child, the parents are always going to be aware of what that child wants. A very good part, I'm sorry, Ms Gallagher. I'm also a solicitor mediator and I was just going to agree with Stephen that where you have a couple coming into mediation it is a voluntary process and the mediator very much tries to focus the parents on thinking about their children and trying to think about what's best for the children and make decisions for their family on that basis. The children may not physically be in the mediation room, but they're certainly very much at the centre of the process. Have you ever had grandparents at these mediation? Not personally, but I'm aware of situations where they have been involved. Yes, I'm personally a bit unaware of situations where they have been involved. You have either, so it's not. Is it common or uncommon? No, it's not common. It's not common. It's not common. Just to know that. John. That being the case, I think I know the answer to what I was going to say. That was a category kinship carers and there can be financial responsibility attached to that. Are they? Is the legislation sufficiently flexible that they are pecked up in it, or is that something that we need to be looked at? To be more specific, it just probably needs to be looked at. When my boiler's not working, it probably needs to be looked at. There's something technically wrong with it if you can be more specific. My experience of dealing with kinship carers is where the social work department have encouraged the person looking after the child to then apply for a residence order or parental rights. So there are a lot of issues surrounding funding for all of this, and how people actually practically go about. Sometimes the social work department will fund those applications, but also the legal aid application is another element to this. The social work department funds applications to the court. They finance a court application. Is that common? I didn't know that. I want to move on to cohabitation. Whether marriage has seen its day, well, mine did, but it's a long time ago. Who wants to talk about that? We're in a very different society now from 30, 40 years ago. What's your views on that? Are you prepared to put them on public record? I think that the 2006 act was very good in the sense that it was introduced to trying to cover situations where people had been living together for a long period of time and they didn't appreciate that they had no rights. Often misunderstood concepts have been managed by cohabitation and repute. And it was quite radical in the sense that England had nothing equivalent. I think that the difficulty was that there was no, there wasn't a lot of publicity about it. I think that even now there is still a lot of the population that don't quite understand that there are potential rights. The people who come into our offices tend to be, after a relationship was broken down, tend to be people who have got houses and they're worried about what their rights are in relation to houses, as opposed to people who might just come in and say, is there a potential for a claim here? So I think that there's still some education to do as far as the extent of the cohabitation rights. But I think that also, with any new law, it's always very difficult to interpret it. And when it came in, all the lawyers, I think, were scratching their heads saying, what are we going to do? And 10 years down the line, we're probably in a similar sort of position. And I think that there are all sorts of issues about, you know, do we try and be more specific as to how these rights are applied and who do they apply to and so on? But I think that the first thing, the first comment that I would make is that I think that we still need to educate the public to a certain extent about what the rights are and where they can actually apply for some relief if there is a breakdown of the relationship. And it's not just the situations where there is actually houses involved. Ms Gallagher. I would agree with that. I think that the members of the public that don't really fully understand what the framework here in Scotland is. And I think that what I put in my written submission was that there are a lot of online family law resources available, which are not specific to Scotland, and people don't appreciate that Scotland has its own framework. I do your own will, which is another great picture. Yes, and I think that it is important that people do understand their rights and what's available. Is that all, though? Is it all just what's available now or, you know, that's one point, but do they go far enough? Which, I did ask you whether marriage had seen its day. I mean, I think that that's a fundamental question. Are you treating, should we be treating people who are cohabiting in the same way as people who are married? I mean, that's a political situation, you know, that's a much... No, I beg your pardon, it's a legal question, because I think there is an issue here about people, cohabiting is very common now. And, you know, people, as you say, don't understand that they don't have certain rights and financial settlement. So, maybe, given that it's a big cultural change, should we just say, well, if you can establish you've cohabited properly and such and such, you've got these rights as well to financial... You know, or is that wrong? With your lawyer's hat on. Well, I'm not sure that I would necessarily think that a lot of the population, if they're in a cohabitation situation, that they would then be comfortable with all the rights and responsibilities that would necessarily flow with that, as if they were married. I think people who are getting married are taking a conscious decision and they understand better that there are responsibilities and rights that come with a marriage. Whereas people can fall into a cohabitation situation and perhaps not realise... That must fall into the marriage. Well, yes, but it's a much more conscious. I know what you're saying, Ms Gallacher. I think that that's right. I think that, in terms of looking at financial provision on divorce, it's quite easy to pinpoint the point that the obligation starts and that you've got the date of marriage. I think that, as Mr Branses, people can gradually drift into a cohabitation situation. And I think that probably a practical difficulty just thinking from a lawyer's perspective would be viewed as somebody who comes in to see you and they have the same rights as a married couple. If the law was changed in that way, it would be pinpointing what point to these obligations start. And I think that that's one of the things that you want to have a concept of cohabitation property in the way that you have a concept of matrimonial property. But the question then would follow how exactly would you define that? And that's something that I think that we need a considerable amount of work. Yeah, I understand the evidence difficulties. I've got Ms Welcome, then I've got Rodd followed by Gil. I've got you, Gil. But I want to hear Ms Malcolm first, then I'll take you. It's okay, yeah. No problem. With regard to what's been said so far, I disagree slightly in relation to the knowledge of the public. I think that when this legislation first came in in 2006, there was a distinct absence of knowledge about the introduction of these rights. And we still had people under an illusion that they could be what was a common law husband or wife. My own personal view is that that has moved on. And I think the public are much more aware that there are rights now available to them as cohabitants and former cohabitants under this legislation. Certainly there seems to have been a much greater uptake in the last few years of making use of the provisions in the 2006 act, particularly section 28, which is obviously relates to a cohabitation that ends during a lifetime. I personally, again, I don't think that marriage has a day. I think it's a matter of law. It is perfectly appropriate to have these distinctions still between two people, people who choose to cohabit and those who choose to marry. Mr Brans' point is absolutely right that there is a conscious decision made at some stage to marry. And people generally recognise what that commitment means, both in a personal sense but also in a legal sense, that there will be property impacts upon them in due course if that marriage comes to an end. There can be a situation where people drift into cohabitation but people also make a conscious decision not to marry. And that is a conscious decision because they do not want to have the same sorts of property rights imposed upon them as they might see it as they would if they were a married couple. Rodi. Thank you, convener. If we accept for the moment, for the purposes of argument, that the rights of cohabities will be different from the rights of married people in terms of financial provision. Notwithstanding that, we've had representations from solicitors that they can't advise clients properly on the impact of section 28. Professor Mayer said that section 28 is poorly drafted, complicated and difficult to understand. In your written submission, Kersti, you suggested that you didn't think section 28 could be improved, heavily criticised, difficult... Yes, sorry, I won't... You know what you said. I'll just tell you. I'll just tell you that. Thank you. Okay, it was heavily criticised. Difficult to see what might take the place of section 28. So can we just expand the debate on whether section 28 is fit for purpose? Again, my personal view and based on experience and practice, you have a recognised system for financial provision on divorce in the 1985 Family Law Scotland Act, which is very clear and has been in operation for a very long period of time now. It took some 15-20 years for the interpretation of that to bottom out, and it has pretty much done that now through case law. There are still one or two areas untested, even, under the 1985 Act provisions. My view is that issues in relation to things like share options and how you would go about valuing those and how they would be taken into consideration, there are still issues in relation to pension rights that that's an on-going debate. It's actually being litigated at the moment and about to go to the Supreme Court. So that's just the interpretation of regulations to deal with pensions and pension rights. So there are these relatively minor areas, I would say, but in general terms, the 1985 Act has bottomed out and everybody knows how to advise upon it and where to go with it. In relation to the 2006 act, it's a difficult framework to work with. I don't dispute that. I think that Professor Mayer's comments that it's ill drafted, I think it's maybe a bit harsh. It isn't easy to work with, but I think that if you take a structured approach as the act itself tries to set out and work with it, you can get to an answer. As an alternative, I don't agree that we should fall back on exactly the same provisions as the 1985 Act for married couples, because the issues that apply to people who are living together as opposed to being married can be very, very different in their own minds, as well as in practical terms. And I think that the test of looking at it from the point of view of one party being economically advantaged or disadvantaged is a wide open test. There's no doubt about that. But once you drill it down, you can recognise distinct areas where there is a need to counterbalance somebody's financial contributions or non-financial contributions within the context of that relationship. The biggest difficulty is the quantification of claims in these section 28 proceedings. The courts have taken very different views on what should or shouldn't be taken into consideration. But again, there is a clearer line now developing. It has perhaps just taken that bit longer than it did under the 1985 Act, but I don't see an alternative that would work with the model of cohabitation like section 9 of the 1985 Act, where there are distinct principles put in place. I think that there is effectively one principle that applies here in the cohabitation sense, and that is taking account of where one party has been economically advantaged or the other disadvantaged or vice versa. My understanding of the approach that was taken at the time that legislation was under consideration was very much that you couldn't go much further than that with regard to cohabiting couples because they don't make the same sorts of commitments as a married couple do. From my point of view, I don't see how that legislation could be altered or expanded in any way to reflect the need to maintain some sort of difference. Well, maybe I'm not... I'm going to... Yes, sorry, Rodeus. I was just going to say that I was interested to hear what other people have to say on that point. Well, I was actually going to sit from the chair, if I may. Mr Brand. Yes, I mean, I think... I agree with a lot of what Ms Malcolm is saying. I mean, I know that there are some slisters who would prefer much stronger or clearer guidelines as to how to advise clients, and there's no doubt that when people come in, it's very difficult. And you do have to then use your brain and explore the whole situation to see if there is an economic advantage, disadvantage. And I think when... You know, there are cases where it's quite clear that that has happened. I can think of one or two at the moment where I'm dealing with where there has clearly been an economic disadvantage to somebody's advantage. A lot of these cases eventually settle because there is a risk of going to court. Courts are very expensive, as probably we all know. And at the end of the day, people will compromise. And, although, ironically, it's perhaps less clear as to what guidelines to use, people will actually compromise and because they're afraid of the cost of going to court. But I think that, yes, you could change it, but whether it will be improved or not, I don't know. So I'm inclined to personally agree with Ms Malcolm and her general views. Am I wrong in presuming, then, that usually it's an order for a capital sum? Although you can pay it by installments, but it excludes lots of other things. Yes, well, I mean, there are certain areas about that. Yes, I think that it would be better for the courts to have the power to do some property transfer orders. As I said at the beginning, a lot of people that come in, it's because there are houses involved. So I think to be able to have a property transfer order within the ambit of what the courts can order would be useful. And there are other issues about it, such as the time limits, which have also come under criticism and things like that, which... Well, I think that the concern was that family lawyers generally hadn't really had to worry about time limits, but time limits of six months for section 29 and a year for section 28 claims are quite tight. And also there's an issue about when is the date of separation, because that in itself can be a cause of frequent arguments. So when does that date of separation crystallise and when does your one year and six start from? So I think that six months, I think, is definitely too short for the intestacy claims. The one year one, it would probably be good to have a failsafe whereby an action could be raised on cause shown. I think that one of the submissions I suggested that, and I would agree with that. I think that that's probably quite a good provision to put in. I'll let Gil in, but we'll come back perhaps to that, Gil. Yes, that's the point that I was trying to get in on. And the idea, well, I think we know that some people cohabit actually are in a well-raising set longer than people who marry. And yet people at marry have all the time in the world to decide when to get divorced then. The financial bagging will take place at that particular time. Whereas someone who cohabits have got, first of all, they've got a year to get everything in order, and then after that it's time bar. And of course, if someone passes away in a relationship, and it might be a good relationship, that might be no reason, no conflict of any kind, and they may have spent equally. So they've only got six months, it seems that that... I can understand the marriage, but this is more technical in a way that has nothing to do with marriage. So I wonder if anyone would further comment on that. Ms Malcolm. The whole time limit issue is something that has vexed a lot of people in practice. I don't agree, however, that the one-year period is too short. And equally, I don't agree that the six-month period in relation to claims after death is too short. I think in my submission that the point I had made was that in relation to claims under section 29, where one of the cohabitants has died six months, is a very short period of time, particularly when people are grieving. More often than not in practice, what happens in those situations is that an application is made to the court and then put on hold pending discussion. And quite often, those cases don't go any further because they are resolved once the details of an estate has been ingathered and that doesn't necessarily happen within that six-month period. However, I think that my understanding of why those time limits was put in place primarily was to avoid stale claims. And it's a slightly different situation to people who are married because once you're married there are on-going obligations imposed by law in relation to maintaining a party and so on. And there is a communal property that has to be divided at a specific point in time or with reference to a specific point in time for cohabitants that same framework doesn't exist. So there has to be some time period within which claims are brought in my view because if you leave it open-ended you could have somebody two or three years down the line turning up after the end of a relationship and saying, well actually now I feel hard done by, I need X, Y and Z. And then the evidence to establish a claim or a rebut a claim is not necessarily going to be that easily to pull together. So I do think there has to be again that distinction and I see that as part of the distinction between the bring to an end of a marriage and the bring to an end a cohabitation relationship. I do think however for claims on death there ought to be an extension possible on cause shown and in the original drafting of the bill that existed but disappears somewhere in the debate stages and I don't really understand how it disappeared it just did but there are odd situations that can arise as a matter of law which will terminate somebody's claim or make it impossible to claim within that six month period because there is another issue that has to be resolved and that in particular arises for example if somebody has written a will but that will is then challenged and is reduced the party who might have been left money in the will as a cohabitant then finds themselves six months later time barred in terms of a claim under the 2006 act and there's another more complicated situation which can arise which relates to children who haven't been provided for in a will there is a Latin maxim that kicks in I think that's also subject to review at the moment as part of the succession review but that child would have to then seek a declarator that the will should be set aside and that sort of procedure takes much longer than six month period so in those sorts of exceptional circumstances a six month period could be extended but again it's on question of cause shown I think just at the end Ms Malcolm clarified so I take it what would happen presently if the six month rule someone and I could well imagine in the circumstance they didn't know, they forgot whatever it is but if it was say eight months nine months something like that there would be a provision within the law presently that that would be heard and you know that a case could then proceed on that basis at the moment no but what I'm saying is that that there should potentially be that introduced on cause show allow an extension of the six month period okay that clarifies it thanks for that Eileen are you yeah I was also going to ask about the timelapse but I think that's been well explored now we also had some evidence from stakeholders that section 28 has been interpreted by the courts as only allowing a court order for the payment of capital sum you've asked that you've asked that yes I know I'm so so you've already asked that okay you missed it I missed it but you may want to add a bit to that do you want to add another no I didn't know well it was really whether or not irrespective of the fact that you may not want or may not be undesirable for cohabitation to equate to mileage in terms of all the rights whether in fact there should be a wider range of court orders available than there is currently available under section 28 Mr Brant you're nodding you've nodded a country you see yes as I say I think that the ability to transfer property would be a useful thing as well to have give us an idea of orders that you would like to see you know just it would make sense you know what kind of specifically I think an order that would allow transfer of the family home would be useful that's available in a divorce case because that would be something that can't be done at the moment but would be would be helpful in a lot of cases yes Ms Malcolm I would go further than that in the provisions under section 29 there is scope for the transfer of property in a wider sense and I think the facility for that to happen in relation to claims under section 28 would be of benefit I've been involved in a number of cases where the couple concerned had built up a substantial property portfolio between them and they were facing at a time of recession where property prices had plumpted the unenviable situation of possibly having to realise everything to sort the matters out between them rather than having the scope to get orders to transfer the properties as between each other but equally there can be situations for example where they've both put money into a life policy or something of that nature and if that is a facility that you have in relation to divorcing couples movable property transfer orders are available it might equally be an appropriate thing to do for cohabitants just to extend it beyond heritage it's certainly in section 29 it's a property transfer order is available and something similar in section 28 would just widen the scope for resolving these disputes No, I saw you, Elaine No, I hadn't asked that you're quite right do you just rebuke me I don't mind, I'm tough Rod Yeah, just as a small point in terms of one of the threats of the submissions was a lack of publicity to judgments given by sheriffs on the application of section 28 just wondered what the views of the panel were on that and how that might be improved Well, that's reduced everything to silence That's Malcolm I think it might have been a point I made committed it to writing you see any scrutinised it It is disappointing I've been involved with publishers in relation to this matter and I've been very fortunate in that a lot of people have passed to me judgments they've obtained in relation to section 28 applications and section 29 applications that haven't been published on the Scots courts website and that has given me an insight to how certain aspects of this are working which is not readily available to the wider profession I'm aware of a far greater number of section 28 applications have been heard before courts and decisions given but nobody knows about them and if we are to develop this law in accordance with the existing legislation for practitioners to properly understand an approach that the court might or might not take it seems to me that that isn't going to happen unless there is the publication of the decisions that are being made by sheriffs I don't know what rules apply in relation to sheriffs putting their judgments onto the Scots courts website and what dictates whether they do or don't I think some of them are possibly reticent to do so because they themselves are not terribly certain about the approaches that they have taken with section 28 but I think that it could only help them as well amongst the shrievel profession that if there is more publicity about the judgments that are being reached then everybody benefits and I don't know how you move that on I don't know how you persuade sheriffs to put their judgments on the internet because Do they decide that? Do they decide that? I don't know, I'm asking I'm counting Mr Madsword Somebody once said to me that they don't have a choice and that they're supposed to always publish but there's no way they do Nobody knows and nobody, there's a conundrum we will find out they now know because we've raised it secret sheriffs Mr Maxwell Both in connection with section 28 but in broader sort of connection to the whole spectrum of family cases I think we have a great lack of knowledge in Scotland of how what actually happens in the court in family cases we've got the problem in our statistics at the moment that only the primary crave gets recorded so anything that's not the primary crave is missed and because we don't have routine publication of sheriffs judgments and we're still not we're not even going to get routine publication of sheriffs principle sheriff appeal court judgments we only have routine publication when you get up to the court of session level I would I appreciate it's not all this is within the remit of this committee of the parliament but I think a move towards all judgments being published family judgments obviously get anonymised but that would give us far more information about what's happening in courts throughout the land at the moment I think it's the sheriff principles who are the prime sort of decision makers as to whether things go or not but obviously individual sheriffs if they feel that a case that they've been involved in is notable they will put it forward but there's no there's no system for making sure that important things get published well certainly we have a research facility within the parliament called SPICE who could perhaps clarify for the committee what the rules are pertaining to publication of shreval judgments at the moment so I'm going to stop there because we're time constrictor we've got stage 2 coming but you don't need to say anything but I'm going to come round and say because we're going to write a report regarding issues for the next justice committee briefly the key words briefly I'm not meaning you miss Johnson although you're a wonderful speaker I am I didn't handle that very well to make a point a single point you would like to make for us to focus on to summarize your attendance you need to have not addressed it already yes yes there is nothing fundamentally wrong with section 11780e what's needed is survival training more understanding of how it works domestic abuse the impact of it and also training for legal professionals and actually anybody who's involved in the process who'll give a view as to whether domestic abuse is an issue or not thank you very much Mr Maxwell I'll disagree with Louise and say that I feel that there is a need for a fundamental look at family law we're 20 years on from the main legislation here it was progressive in its time but society has changed and obviously I would be looking for things like shared parenting to be more acknowledged and more supported within the legal system so I would hope that the committee would be looking at revising family law in a fairly fundamental way in in in their legacy report to the next Parliament it'd really be for the Government but the next justice committee we have recipients Mrs Loud and Mrs Loud um we believe there's an anomaly in the family law in regard to grandparents in particular because a child can legally make a claim on their grandparents's state if their parents pre-deceased their grandparents but they don't have any legal right of contact and a right to claim the love and support during their lifetime thank you very much miss malkin thank you I think my comment would simply be in relation to the different statuses I think we've established the status where we recognise marriage and we now have a good recognition of cohabitation as something that devolves legal rights I think there's still work to be done but I think expanding our understanding of the decisions that are being made is a key to that miss Gallagher I think that section 28 probably should be looked at again to see if there are ways that it can be made clearer for people who are actually using it in practice I think what the FLA members who responded came back with quite clearly was that quantifying those claims for clients is very very difficult and I think that that's something that should be looked at in terms of other amendments that could be made to the legislation that could better focus how we go about doing that Mr Brandt I would like to wish for a more a move towards special sheriffs who are dedicated towards family matters and towards a family court even with mediators and social workers that direction I think is the way that the law should go by that so that has a much bigger issue I think that there should be more publicity about what the cohabitants rights are generally Well can I thank you all very much for your evidence and as I say we'll be drafting a report that will be given to the next justice committee and you've raised some important issues which I hope will be taken up by the next Government whoever that is so thank you very much I'm going to suspend for five minutes because when we move on to stage two thank you thank you resuming item three views of baby and sexual harm Scotland bill stage two proceedings continued from last week you should have copies of the bill the marshal list and groupings of members for today's consideration we're starting at section 10 and we will complete stage two today now welcome Michael Matheson cabinet secretary of justice and his officials to the meeting and I'm moving straight on to section 10 I call amendment 19 in the name of the cabinet secretary group with amendments 24 to 33 and 49 cabinet secretary pleased to remove amendment 24 and speak to the other amendments in the group convener these amendments are just the part of the bill dealing with sexual harm prevention orders and sexual risk orders to acknowledge that relevant criminal offences can result from acts of omission as well as acts of commission amendment 19 does this in section 10 by inserting the words or made the omission after the person has done the act in subsection 1c this is necessary to make clear that the circumstances when a court can make a sexual harm prevention order on sentencing a person can include where a person is found unfit to stand trial but the court determines that the person has omitted to do something and that omission would constitute an offence amendment 24 to 26 adjust section 12 as necessary to provide for acts of omission and amendment 27 makes a similar change in relation to section 12 amendment 28 to 33 make the necessary adjustments to section 14 and amendment 49 amends section 33 to acknowledge that sexual risk orders and interim sexual risk orders may be breached by omission and I move amendment 19 thank you very much and I forgot to say good morning cabinet secretary my haste I never forget to be polite to the cabinet secretary anyone else wishing to comment and I take it you don't wish to wind up cabinet secretary the question is that amendment 19 by Greta are we all agreed read call amendment 20 in the name of the cabinet secretary group with amendments 22, 30, 39, 40, 51 and 52 cabinet secretary please to move amendment 20 and speak to the other amendments in the group amendment 20, 22, 38, 40, 51 and 52 are minor drafting points necessary to clarify to the reader of the bill the linkages between various sections of the bill and the orders to which they refer and to improve how the various orders are defined amendment 20 and 22 like the making of sexual harm prevention orders under section 10 and 11 with the provisions relevant to the content and duration of these orders as provided in section 15 similarly amendment 40 it makes the link with the link for sexual risk orders under section 26 with the provisions relative to the content and duration of those orders as provided in section 27 and amendments 38, 39, 51 and 52 bring greater precision to the definition for the order and interim orders in section 24 and 34 respectively in a move amendment 20 thank you very much cabinet secretary anyone else wishing to speak and you won't want to wind up cabinet secretary the question is that amendment 20 be agreed to are we all agreed thank you call amendment 21 the name of the cabinet secretary group with amendments 23, 23, 34, 35, 36, 41, 42, 43 and 44 cabinet secretary please to move amendment 21 and speak to the other amendments amendment 21, 23, 34 to 36 and 41 to 44 ensure that before sexual harm prevention orders and sexual risk orders are made the potential subject and as appropriate the police and the prosecutor can make written or oral representation to the court they also ensure that before such an order is varied renewed and discharged the subject and the chief constable can make such representations this was a recommendation from the committee stage 1 report and i know that the convener indicated in her stage 1 debate speech that she would welcome the government's actions in this area to put this matter beyond out at stage 2 we are clear that there should be an entitlement to make such representation whether in oral or written form and we believe these amendments put this matter beyond out in a move amendment 21 simply to welcome this amendment Yes? I think the committee would welcome that in terms of the right to representation under ECHR cabinet secretary do you wish to wind up the question is amendment 21 we agree to are we all agreed questions at section 10 we agree to are we all agreed call amendment 22 to name the cabinet secretary ready to debate with amendment 20 to move formally please moved the question is amendment 22 be agreed to are we all agreed call amendment 23 to name the cabinet secretary ready to debate with amendment 21 move formally please Mathwaith ERo Act valeilawyerdol hefyd yn ei gwasanaeth ynglyn â 4 mfèid lighterus gan anio amddangol iaith y Ung Prophet Bund yn lleugio drwng i cadw, u mewn ni wneud yn eich cy offspringi o bezun gyntaf. Nid wedi gwnaethum unedig, yll quietlyn spiderogau, ger Purwastaydd,�wen â 9 mfèid lighterus 17Aag Reded the Questions On section 13 by Agri Rwynt idd nam reorgan y Lland, a gweld i gael ysgrandd. B crystall ddechrau 15 a 18, ac rwynt i gael ysgrandd. Wet memwys i ddim yn 34, 35 a 36, ond i'r cadw laet bod Poloedd yn nhw y Llywodraeth Cymru yn i ddechrau ddarparu iawn yn ryef yn sfrig. Ish ar gyflasgfaith nhw ddim yn ddim yn cynnig? A les y cwestiwn y Llywodraeth Cymru yn dychydigol ysgrifennu i ddim yn nhw'nol. Be gael ysgrandd ysgrann yn nhw'n 35 i ddim yn nhw y cadw laet adraed a ddim yn yn neud the Cabinet Secretary of State group with amendments 45 and 46 ApittenYour scope. bunch, to move amendment 37 and speak to the other amendments in the group? Am� 37 and 45 Learning and Training Statutory as relates to in-tتهigns sexual harm prevention orders and in-tuhignal individual risk orders. Amem 37 and 47 of amendment 37, our minor technical drafting amendments designed to ensure that the phrase that might be made is directly linked to the subject of the actions set out in section 27b and section 37b respectively. Amendments 45 and 46 are more substantial and provide that when making an interim sexual risk order, the sheriff must not only be satisfied that it is just to make the interim order but also must be satisfied that there is a primifasy case that the person has done an act of a sexual nature that is being relied upon in relation to a connected application for a full sexual risk order under section 262 of the bill. The test for that there is a primifasy case is one that is already familiar to the courts in relation to interim interdicts and other interim civil orders. Amendment 45 and 46 align interim sexual risk orders with the risk of sexual harm orders at which they replace, and I move amendment 37. Morning, cabinet secretary. Are you able to clarify why the bill is not being amended to provide a primifasy test for interim sexual harm prevention orders? Well, the sexual harm prevention orders are after someone has actually been convicted of such an offence, so a conviction has already been achieved, which is different from the sexual risk orders, and on that basis there is no need for such a qualification to be provided. No one else is asking questions. Cabinet secretary, do you wish to wind up? You have already done that. Questions at amendment 37 be agreed to. Are we all agreed? Questions at section 20 be agreed to. Are we all agreed? Questions at section 21 to 23 be agreed to. Are we all agreed? Call amendment 38, in the name of the cabinet secretary, ready to debate with amendment 20, to move formally, please. Questions at amendment 38 be agreed to. Are we all agreed? Call amendment 39, in the name of the cabinet secretary, ready to debate with amendment 20, cabinet secretary, to move formally. Questions at amendment 39 be agreed to. Are we all agreed? Questions at section 24 be agreed to. Are we all agreed? Questions at section 25 be agreed to. Are we all agreed? Call amendment 40, in the name of the cabinet secretary, ready to debate with amendment 20, to move formally, please. The question is that amendment 40 be agreed to. Are we all agreed? Call amendment 41, in the name of the cabinet secretary, ready to debate with amendment 21. I agree to our will agreed. The question is that section 26 be agreed to our will agreed. The question is that sections 27 and 28 be agreed to our will agreed. Column amendments 42, 43 and 44, on the name of the cabinet secretary and the previous debated, to move on block. Is any member object to a single question? The question is that amendments 42 to 44 are agreed to our will agreed. The question is that section 29 be agreed to our will agreed. Column amendments 45, 46 and 47, on the name of the cabinet secretary and the previous debated, to move on block. Is any member object to a single question? The question is that amendments 45 to 47 are agreed to our will agreed. The question is that section 30 be agreed to our will agreed. The question is that section 31 be agreed to our will agreed. Column amendment 48, the name of the cabinet secretary and the group of its own. Cabinet secretary, please to move and speak to that amendment. Amendment 48 provides for a new section in the bill to require the quote to intimate to the subject of a sexual risk order when such an order is made, varied, renewed or discharged. The purpose of this amendment is to provide an equivalent to section 22 of the bill in relation to sexual harm prevention orders. Service of a copy of the order assists in keeping a formal record of the subject's awareness of the status of the order, which can help in, among other matters, any future proceedings relating to breach of the order. The question is that amendment 48 be agreed to our will agreed. The question is that section 32 be agreed to our will agreed. Column amendment 49, the name of the cabinet secretary and the previous debated, amendment 90, do you formally please? The question is that amendment 49 be agreed to our will agreed. Column amendment 50, the name of the cabinet secretary and the group of its own. Cabinet secretary, please to move and speak to that amendment. Amendment 50 deals with what happens to existing sexual offender notification requirements imposed under the sexual offences act 2003, when a person breaches a sexual risk order. Breaches of a sexual risk order has the effect of keeping alive any notification requirements that would otherwise expire. In the bill, as introduced, it was not clear how long the notification period would continue in place. The amendment clarifies that it will be until the expiry of the sexual risk order, and I move amendment 50. Thank you very much. No member has indicated that they wish to speak. Cabinet secretary, you will want to wind up. The question is that amendment 50 be agreed to our will agreed. The question is that section 33 be agreed to our will agreed. Column amendment 51, the name of the cabinet secretary and the previous debated, amendment 20, do you formally please? Moved. The question is that amendment 51 be agreed to our will agreed. Column amendment 52, the name of the cabinet secretary and the previous debated, amendment 20, do you formally? The question is that amendment 52 be agreed to our will agreed. The question is that section 34 be agreed to our will agreed. Column amendment 53, the name of the cabinet secretary group with amendments 54 to 60. Cabinet secretary, please, to move amendment 53 and speak to the other amendments in the group. Amendments 53 to 60 are mostly of a technical nature and describe more clearly how the various equivalent orders made elsewhere in the UK will be enforced in Scotland if they are breached in Scotland, as set down in section 35 of the bill. Amendments 53 to 56 replace references to orders in England and Wales and Northern Ireland, with all encompassing reference to other orders elsewhere in the United Kingdom. Amendments 57 to 59 clarify that various references in section 35 to orders under the sexual offences act 2003 do not relate to such orders made in Scotland. Amendment 68 adds two types of orders, which a small number of people continue to be subject to in England and Wales, despite the relevant legislation having been repealed. Amendment 53 be agreed to our will agreed. Column amendments 54, 55, 56, 57, 50, 59 and 60, all in name of the cabinet secretary and all previously debated. I invite the cabinet secretary to move on block. Does anyone reject a single question? The question is that amendments 54 to 60 are agreed to our will agreed. The question is that section 35 be agreed to our will agreed. The question is that sections 36 and 37 be agreed to our will agreed. Column amendments 61, the name of the cabinet secretary group with amendments 62 to 66. Cabinet secretary, please to move amendments 61 and speak to the other amendments in that group. Amendments 61 to 65 are largely technical in nature and generally improve and better explain the saving and transitional provisions in section 38 that are necessary to maintain Scotland's existing civil order regime until such times as the new order orders come in to come on stream. Amendment 61 removes a definition of new order and adds interim order under the old regime to the definition of existing order so that it continues to have effect during the transition to the new regime. Amendment 63 provides a new definition of corresponding new order that better explains which of the existing civil orders correspond with and have their equivalent in the new set of orders. Amendment 62 makes use of the new definition in section 38 3b of the bill. Amendment 64 expands the definition of relevant sections of this act in section 384 to include sections relevant to interim sexual offences prevention orders and interim risk of sexual harm orders in consequence of amendment 61. Amendment 65 removes a definition that is no longer required as a result of the other amendments in section 38. Amendment 66 is a consequential amendment that brings the new civil order created by this bill into part 5 of the Police Act 1997. As a result, details of sexual harm prevention orders and sexual risk orders may be disclosed on certain enhanced disclosures so that a person's suitability to engage with children or protected adults in certain limited contexts can be assessed. For example, prospective adoptive parents would be subject to this sort of enhanced disclosure, as would people applying for a guardianship order in relation to an adult with incapacity. That replicates provisions for enhanced disclosure, which already exists in relation to the orders that this bill is replacing. Amendment 61 The question is that amendment 61 be agreed to or are we all agreed? Call of amendment 62, 63, 64 and 65, all unnamed by the cabinet secretary, all previously debated. I invite you to move them on block, cabinet secretary. Does any member object to a single question? No, the question is that amendments 62 to 65 are agreed to or are we all agreed. The question is that section 38 be agreed to or are we all agreed. The question is that section 39 to 41 be agreed to or are we all agreed. Call of amendment 66, in the name of the cabinet secretary, all already debated with amendment 61 to move forward, please, cabinet secretary. Moved. The question is that amendment 66 be agreed to or are we all agreed. The question is that the schedule 2 be agreed to or are we all agreed. The question is that sections 42 to 44 be agreed to or are we all agreed. Call of amendment 2, in the name of a market, which already debated amendment 1, move or not move. The question is that amendment 2 be agreed to or are we all agreed. It was consequential—neither. Did you say yes? I did. You did say yes. So I will be a division. Those in favour, please show. I'll have to do this mark. It was consequential. No, I was thinking it was one. I would still support it. Those against, please show. Apologies. It's 2.46 against that amendment. Is disagreed? The question is the long title. Are we all agreed? Yes. At end stage, your consideration of the bill. That's a great next. 8.4. Subordinate legislation I'm just going straight on. Long day ahead. It's consideration of four negative instruments. First, the Police, Pensions, Miss Lainness and Amendment Scotland regulations 2016. This gives a scheme member who has entered into a same-sex marriage sex marriage, the equivalent survivor benefits to those available to scheme members in a civil partnership. The Delegated Powers and Reform Committee agreed to draw the attention apart for reasons that you already know. There was an error, the Government has acknowledged this error and undertook to address it in a future amending instrument. Do you have any comments relating to this instrument? No comments. Are members content to make no recommendation? Thank you. The second instrument under consideration is the Five Fighters' Compensation and Pension Scheme Scotland Amendment Order 2016. That amends the compensation scheme order so as to allow a person entitled to pension or maturity under that order to retain it following remanage or the forming of a civil partnership. The DPLR committee did not draw the instrument to the attention of the Parliament on the grounds of anything within its rematch of any comments. I just think that it is an excellent move. It seems that there was an injustice there. Are members content to make no recommendation in relation to this instrument? The third instrument under consideration is the Five Fighters' Pension Scheme Scotland Amendment Regulations 2015. That makes provision for new entitlements to shared parental pay. Again, the DPLR committee did not draw the instrument to the attention of the Parliament on any grounds within its rematch of any comments in relation to this order. It seems that it is a very reasonable move. Are members content to make no recommendation? Yes. The fourth and final instrument under consideration today is the Fireman's Pension Scheme Amendment Scotland Order 2016. That allows a person entitled to pension under the Fireman's Pension Scheme Order 1992 and also to pension under the Five Fighters' Compensation Scheme Scotland Order 2006 to retain the former pension following remanage or the forming of a civil partnership. Again, the DPLR committee did not draw the instrument to the attention of the Parliament on any grounds within its rematch of any comments in relation to that. It is disappointing in 2016 that we are still being very gender-specific. I think that we have been here and commented on this before, but I think that it is worth saying again that it should be firefighters. I think that because the previous one was called the Fireman's Pensions Scheme 1992, it is simply a technical matter and thereafter it is firefighters. I think that it is just a simple matter that you cannot change existing legislation in that manner, so I take your point. Notice it myself. I comment that it shows the progress that has been made since 1992. The main progress is firefighters in the department. Right. International Women's Day. Your point has been made. Apart from that, you made no recommendation relation to this instrument. Thank you very much. That concludes consideration of public business today and we move into private session.