Skip to main content

Law Reform (Parent And Child) (Scotland)

Volume 79: debated on Wednesday 22 May 1985

The text on this page has been created from Hansard archive content, it may contain typographical errors.

3.42 pm

I beg to move,

That leave be given to bring in a Bill to make fresh provision in the law of Scotland with respect to the consequences of birth out of wedlock, the rights and duties of parents, the determination of parentage and the taking of blood samples in relation to the determination of parentage; to amend the law as to guardianship; and for connected purposes.
In moving the motion this afternoon I should mention a potential interest as a Scots advocate. Last year, with the support of colleagues I put through the Law Reform (Husband and Wife) (Scotland) Bill, which is now an Act. The Law Reform (Parent and Child) (Scotland) Bill involves a bigger issue. If I may rephrase that, the issue of the liaison may start small, but the implications are considerable.

The Bill relates to children of unmarried parents and is based on the recommendations of the Scottish Law Committee, after widespread consultations. It has the support of both the Scottish Council for Single Parents and the National Council for One Parent Families. There are now an increasing number of people for whom this Bill is relevant. In 1965 in Scotland the average percentage of live births of children whose parents were not married was 5·84 per cent. Last year, the average percentage had increased to 16·34 per cent. That is a considerable increase.

The Bill's main aim is to remove legal differences between children of married parents and children of unmarried parents without conferring parental rights automatically on the unmarried father of children. In extreme circumstances, for example, when a man rapes a woman and she has a baby, it would be unsuitable for the father to become a guardian. Apart from limited acceptance, the Bill replaces existing guardianship legislation with provisions based on the principle of legal equality for all children. There are four principal reforms in the Bill.

First, full parental rights of custody and guardianship are conferred on the mother of a child of unmarried parents. The father may acquire parental rights by court order, and in determining an application for parental rights, the court is correctly directed to regard the child's welfare as the paramount consideration.

Secondly, and most importantly, the Bill introduces further rights for inheritance. The rights to inheritance will no longer depend upon whether a child's parents were married. In 1968, the Law Reform (Miscellaneous Provisions) (Scotland) Act gave the child of unmarried parents full rights of succession to his or her father's estate. There have been almost no problems since then. The anomaly in the present law is that, although children or unmarried parents and their fathers can succeed to each other's property, the rule does not apply to more remote relatives. The provisions in this Bill will mean that a child of unmarried parents will be considered on an equal footing to children whose parents are married, when their relatives die without a will. It will involve considerable benefits to many.

Thirdly, the Bill improves and clarifies court proceedings for determining the paternity of a child. Provision is made to facilitate the use of blood-test evidence to determine paternity in civil proceedings, and the court is empowered in limited circumstances to consent to the taking of a blood sample from a child for that purpose.

Fourthly, provision is made in the Bill to facilitate the registration of the birth of a child of unmarried parents and the recording of the father's name after registration of birth. A man registered as the father of a child of unmarried parents will be presumed to be the father.

However, there is a further dimension to the Bill. The Scottish Law Commission stated:
"We have no doubt from comments received on our consultation memorandum, that the word 'illegitimate' is found offensive by many of those to whom or to whose children it is applied."
The commission suggests that the implication is that the person is unlawful. The report also stated:
"We would endorse the view of the Law Commission for England and Wales that the terms 'legitimate' and 'illegitimate' should, wherever possible, cease to be used as legal terms."
The English Law Commission suggested that those words should be replaced by "marital" and "non-marital". The Scottish Law Commission believes that the Bill, which it prepared, would pave the way for the gradual disappearance from the statute book of adjectives such as "legitimate" and "illegitimate".

In many European and Commonwealth countries, the legal position of children whose parents are unmarried has been improved. The preamble to the European convention on the legal status of children born out of wedlock states:
"In a great number of Member states of the Council of Europe, efforts have been made to improve the legal status of children whose parents are unmarried."
I have tried to discover the roots of prejudice, and I came across a revealing comment in a 1984 report from the South African Law Commission. It stated:
"The illegitimate child's legal position is historically ascribable … to the fact that parents were punished for their immoral behaviour by penalising the child in an attempt to persuade the parents to marry."
What could be more monstrously unfair to any child than that? Apart from the fact that it is cowardly and contemptible to try to pressurise parents by penalising the child, as the South African Law Commission admitted, such a policy does not succeed.

Some years ago I was instructed as an advocate to take a case of affiliation and aliment through the sheriff court in Glasgow. The circumstances were straightforward. The father of the child had not paid a penny towards the child's keep. Not only that, but he refused to acknowledge that he was the father. It was my job to establish the facts, which I did. But when I left the sheriff court I could not help feeling sympathy for a child in those circumstances, and I was left with the conviction that the law should not be unsympathetic to such a child.

In my view, no child should be referred to as unlawful, directly or indirectly, because of a lack of marital status of the parents. A child of unmarried parents is a person in his or her own right, and what matters most is the child. The Bill strengthens the position of the child whose parents are not married. I commend it to the House.
Question put and agreed to.
Bill ordered to be brought in by Lord James Douglas-Hamilton, Mr. Hugh Brown, Mr. Alexander Eaclie, Mr. Nicholas Fairbairn, Mr. Michael Forsyth, Mr. Michael Hirst, Mr. Gerald Malone, Mr. John Maxton, Mrs. Anna McCurley, Mr. Albert McQuarrie, Sir Hector Monro and Mr. Bill Walker.