Family Is What You Make It

Family Is What You Make It

What is a family? Is it something the law can define? How does Scot’s law adapt to this ever changing term? Historically in Scotland, like in many other jurisdictions, the nuclear family was the primary family unit. This simply encompassed a married man and woman and their children, and family law provisions reflected this. There began to be a change within society however which saw a rise in cohabitation, same sex relationships and single parent families to name but a few.
A parent has a responsibility and right to participate in their child’s upbringing through Parental Rights and Responsibilities (PRR’s). Mothers, despite their marital status, hold automatic PRR’s to their children. Registered fathers, since 4th May 2006 and the introduction of the Family Law (Scotland) Act 2006, also hold automatic PRR’s. This was often described as marking the end of a long struggle for non-married fathers to gain equality in relation to their children. Fathers, however, still do not obtain automatic PRR’s on the basis of paternity. Where a father is not registered as such he will continue to be deprived of PRR’s and the child in turn will be deprived of a second guardian. Given the rise of divorce and single parent families in modern Scotland, this issue of equality of parental rights may be far from over despite the changes in the law to date.
Significantly, prior to the 2006 Act, Scots law recognised that there had been a change in those who were occupying the roles of “mother” and “father”. For example grandparents or step-parents were undertaking these roles without legal recognition. Although legislation makes provisions for someone who has never had PRR’s to claim an interest, it is questionable whether this legislation goes far enough, evidenced by the numerous cases on this topic such as D v H 2004 Fam LR 41 and E v E 2004 Fam LR 115. There may be a need for step-parents, grandparents and even siblings to have a stronger legal authority in the upbringing and care of a child’s day-to-day life. Thus further eroding the primitive nuclear definition of family.
In the last 25 years Scots law has been significantly reformed in order to respond to these changes in families and provide diverse forms of family relationships with legal protection. A more recent reform is the enactment of the Marriage and Civil Partnership (Scotland) Act 2014, providing for same-sex marriage in Scot’s law. By recognising the right of a same sex couple to marry, the definition of marriage changed to be in line with the 21st century family in Scottish society. Conversely, in a recent case of Steinfield and Anor v Secretary of State for Education [2016] EWHC 128 (Admin) an opposite sex couple were denied the right to enter into a civil partnership. Given the decline in numbers marrying in today’s society it is not inconceivable that we will come to see all couples being able to enter civil partnerships, once again changing the family unit in Scot’s law.

Author: Jadiene Morison, LLB, currently studying for Diploma in Legal Practice

The views expressed are those of the author and do not necessarily reflect the views of the firm.

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