GRANTING OF CUSTODY (Hansard, 28 October 1975)

§ Mr. McElhone
I beg to move Amendment No. 183, in page 29, line 16 at end insert 'enactment or rule of law conferring a—'.

Mr. Deputy Speaker
With this we may discuss Government Amendment No. 41.

§ Mr. McElhone
Both these amendments are designed to emphasise the relationship between the new statutory provisions in Clause 45(1) under which the relative, step-parent or foster parent of a child is entitled to apply for custody of the child in Scotland, and the existing law relating to custody applications.
The first amendment makes it clear that the new provisions are without prejudice to the existing rights of application for custody, and powers of the court to grant custody, under any enactment or rule of law. The insertion of these words makes it clear that the existing law which the new provisions build upon is part statute law—for example the Guardianship of Infants Acts 1886–1973—and part common law.
The insertion of the reference to Section 1 of the Guardianship of Infants Act 1925 in Clause 45(2)(d) is designed to emphasise the relationship of the provisions of Clause 45(2)(d) with the general principle, applying to all cases involving the custody education or upbringing of a child, embodied in the 1925 Act. This is the same principle as is mentioned in the context of custodianship applications in England and Wales in Clause 32(9) of the Bill. Mention of the Scottish provisions is now felt to be desirable in view of the 1484 doubts that have been expressed since the Bill was originally published—by among others the hon. Member for Edinburgh West (Lord James Douglas-Hamilton)—as to the application of Section 1 of the 1925 Act to custody proceedings in Scotland to which the new statutory provisions in the Bill will relate.
These doubts have been related to paragraph (d) of Clause 45(2) dealing with cases where a person is applying for custody without having the locus of a parent or guardian, or who does not fall within any one of paragraphs (a), (b) or (c) of Clause 45(2). The second of the two present amendments should put those doubts to rest by making it absolutely clear that the case to be made by an applicant under paragraph (d) must be related expressly to the court's duty to treat the child's welfare as the first and paramount consideration in dealing with any application relating to custody, education and upbringing.

§ Lord James Douglas-Hamilton
By this amendment, the Minister has protected the rights of non-parents to apply for custody in the Scots courts. I am sure that this decision will be warmly welcomed by Scotsmen.