MISCELLANEOUS PROVISIONS RELATIVE TO CUSTODY (Hansard, 28 October 1975)

§ Mr. McElhone
I beg to move Amendment No. 42, in page 30, line 23, leave out 'applying for' and insert 'making an application relating to the'.

Mr. Deputy Speaker
With this amendment we are to discuss Government Amendments Nos. 43, 44 and 45.

§ Mr. McElhone
The purpose of these amendments is to extend the provisions of Clause 46 in such a way as to provide that certain ancillary provisions already applicable to the making or determination of applications for custody of a 1485 child in Scotland shall also apply in relation to any proceedings subsequent to the making of a custody order by the court. The points now covered have arisen from further consideration of the Scottish custody provisions. They deal with matters relating to court procedure and ancillary powers of the court in custody proceedings in Scotland; the proposed changes extend not only to the new categories of persons qualified to apply for custody under the Bill but more generally to any person applying for the custody of a child in Scotland.
No changes are being made to the substantive provisions of clause 46 which have already been agreed in Committee. These amendments simply apply the provisions of Clause 46 more extensively to the whole range of custody proceedings including applications for variation or discharge of the order and for access or maintenance.

Mr. Deputy Speaker
In calling the next amendment, may I appeal for brevity? It is getting rather late now.

§ Mr. Gordon Wilson
I beg to move Amendment No. 238, in page 30, line 26, leave out from 'child' to end of line 27.
I am surprised that you should ask for brevity now, Sir. I had intended to be brief, but I do not see why I should be singled out.
My first reaction was lack of sympathy for those fathers who beget illegitimate children, but after further consideration one realises that some fathers have been in a permanent relationship with someone for three, four, five, ten or 15 years. They have produced children and when the relationship finishes, they are interested in the future of the child. I presume that that is at the root of the clause.
There is a technical difficulty which I am not sure is dealt with by the amendment, which may go too far. It relates to the term "known" in the clause. How does one know who is the father of a child? In a permanent liaison there is no difficulty, but if a child has appeared as the result of a hit-and-run association, it is sometimes difficult to decide. The clause refers to an Act of Sederunt which could be passed by the Court of Session 1486 outlining the criteria by which the putative parent could be found. Even so, there could be difficulties without adequate guidance from the statute.
An example is a mother telling an applicant for custody that someone is the father. Does that mean that the applicant must give notice to that person? If an entirely innocent person were dragged in, the applicant could be in hot water. So the Government should try to define what a "known" father is. He could be defined—this could possibly be done in another place—as one who is liable under a decree of the court or a written agreement to contribute to the aliment of the child or who has for a period of some months preceding had possession of the child, or, if one wanted a much looser definition, someone who has contributed to the payment of aliment for a child. In those circumstances, the admission would have been made by the father that he is responsible for the child and has paid for it.
There can be few better admissions than the payment of money. In any event, I would like to think that the known parent is someone who has had some fairly close association with the child over a period of time and not someone who is just plucked from the blue because he happens to be the father of an illegitimate child.

§ Mr. McElhone
This amendment proposes the removal from Clause 46 of wording which requires notice of a custody application to be given not only to the parents of a legitimate child, or the mother of an illegitimate child, but also to the putative father of an illegitimate child.
The effect of the amendment would be that when application for custody of a child was being made by any person, whether a parent, or one of the persons now qualified to apply by virtue of the new statutory right contained in Clause 45(1), or a person applying under common law, the putative father might not be aware of the proceedings at all. The problem does not arise as a significant issue in the case of existing custody proceedings in Scotland since, where the custody of an illegitimate child is in question in proceedings taken under the Custody of Illegitimate Children 1487 (Scotland) Act 1930, both parents, including the putative father, where known, will normally be involved as parties.
Such an effect would be unfair to the putative father and undesirable in terms of policy regarding the Scottish custody provisions in the Bill. The departmental committee was at pains in its report to stress that the position of the putative father should be fully examined before an order was made freeing the child for adoption and Clause 14(9) of the Bill expressly requires that the court considering the making of a freeing order should satisfy itself as to the possibility—in the Scottish context—of a prospective application under the 1930 Act. If the court should be required to consider the position of the putative father before making a 'freeing' order, it is also appropriate that the putative father's position should come under review when the making of a custody order is under consideration.
The most effective means of securing this result, while avoiding any delay which might arise, is to require the applicant for custody to serve notice on the putative father along with the mother of the child, where practicable. There is, admittedly, no requirement as to the giving of notice to the putative father in the case of an application for adoption under court rules as at present framed. Clearly, however, this should be looked at again in the preparation of new adoption rules after the Bill becomes law having regard to the comments made by the departmental committee on the position of the putative father at pages 56–57 of its report.

§ Mr. Gordon Wilson
I beg to ask leave to withdraw the amendment.