AMENDMENTS OF MATRIMONIAL HOMES (FAMILY PROTECTION) (SCOTLAND) ACT 1981 (Hansard, 2 May 1985)

§ The Solicitor-General for Scotland
I beg to move amendment No. 8, in page 11, line 3, at end insert— '(1A) In section 1(1)(a) of that Act (right of occupying spouse not to be excluded from matrimonial home), for the words from "not" to the end there shall be substituted the words "to continue to occupy the matrimonial home;". (1B) After section 1 of that Act there shall be inserted the following subsection— (1A) The rights conferred by subsection (1) above to continue to occupy or, as the case may be, to enter and occupy the matrimonial home include, without prejudice to their generality, the right to do so together with any child of the family.".'. The amendment adds a new subsection to section 1 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. It will make it clear that the non-entitled spouse's right to occupy the matrimonial home includes the right to have any child of the family with him or her. In view of the difficulties that have occurred, we consider it desirable to spell that out rather than leave it to implication.
In Committee my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) said that a person who has the right to occupy a house has an implicit right to invite people into it. By spelling out the right of the spouse to have the children with him or her in the matrimonial home we shall avoid any implication that there is no right to invite others into it. The amendment makes it clear that the provision relating to children is without prejudice to the generality of the occupancy rights conferred by section 1(1) of the 1981 Act.
It also appeared to us on examination of section 1(1) that the occupancy rights under section 1(1)(a) are narrowly expressed as a right not to be excluded from the matrimonial home or any part of it by the entitled spouse". It is not at all clear that that is a right to occupy, with all the rights normally implicit in the right to occupy, such as the right to invite others into the house. The amendment therefore amends section 1(1)(a) to refer to the right to continue to occupy". It was also generally recognised in Committee that it was undesirable to define "child" too restrictively. Restrictions based upon age or other factors could cause anomalies. We have concluded that the definition of "child of the family" in section 22 of the Act is appropriate. This covers any child or grandchild of either spouse, and any person who has been brought up or accepted by either spouse as if he or she were a child of that spouse, whatever the age of such a child, grandchild or person may be". If either spouse abused their right to have the children living with them, for instance by bringing in adult offspring who had no need to be there, the remedy of the other spouse would be to seek an order restricting or regulating the occupancy rights under section 3.

§ Mr. Ewing
The Opposition welcome the amendment. The Opposition put down an amendment in Committee, and the Government have kindly taken it away and redrafted it.
If this provision cuts across the amendments to the 1981 Act as contained in the Family Law (Scotland) Bill which we discussed in Committee this morning, I have no doubt that the Solicitor-General for Scotland will ensure that when the present Bill goes to another place it will be possible to remove any confusion that may have arisen.

§ The Solicitor-General for Scotland
I beg to move amendment No. 9, in page 11, line 19, at end insert— '( ) for the words "the purchase of a matrimonial home by" there shall be substituted the word "a sale to".'.

Mr. Deputy Speaker
With this it will be convenient to take Government amendment No. 10.

§ The Solicitor-General for Scotland
These amendments seek to meet two criticisms which the Law Society of Scotland has made consistently about the drafting of section 6(3)(e) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Firstly, in section 6 we are concerned with the dealing of the non-entitled spouse with the matrimonial home. From the point of view of the non-entitled spouse the dealing is a sale, not a purchase, and should be described as such. The Law Society thinks the use of the word "purchase" is misleading, giving the false impression that the third party must be purchasing the property for use as a matrimonial home by the third party. Whether or not this is so, I agree it would seem more logical to refer to the dealing as a sale rather than a purchase, and the amendment makes this change.
The second criticism is that the use of the words "of a matrimonial home" in section 6(3)(e) gives the false impression that it is only competent to swear an affidavit in accordance with sub-paragraph (i) of that provision where the property is in fact a matrimonial home. In fact, it should be possible to swear these affidavits wherever the subjects are property which is potentially a matrimonial home. The words "of a matrimonial home" are unnecessary in the context and I agree that if they are causing confusion they should be excised.

§ Mr. Dewar
I beg to move amendment No. 13, in page 12, line 25, at end insert— '(6A) In section 15(3) of that Act there shall be added at the end of the following "even if there are no grounds for believing that a criminal offence as such has been committed.".'. At another time, this amendment might have given rise to a lengthy debate. However, I will briefly sketch in the purpose of the amendment and invite a reply from the Solicitor-General for Scotland. This is an attempt to amend section 15 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The House will remember that subsection (3) deals with the power of arrest attached to a matrimonial interdict, and makes it clear that a constable may arrest without warrant the non-applicant spouse if he has reasonable cause for suspecting that spouse of being in breach of the interdict. 507 Various discussions arose on the amendment, which I accept was not very practical. It would have made the constable's power to arrest mandatory rather than discretionary.
The Government rightly argued that that would be going too far. However, there is a genuine worry that at the moment, unless the situation is such that there is likely to be a criminal charge or that the constable believes that criminal charges will be mounted by the procurator fiscal, there is a tendency for the constable to walk away from the scene, regarding it as a domestic event in which the police have no real interest.
That was not the intention of section 15(3) nor, to be fair, was it the intention of the chief constables' guidance. Nevertheless, there is a widespread belief that it happens.
The amendment makes it clear that, under clause 15(3), the power of arrest still exists if there is a prima facie breach of interdict, even if there are no grounds for believing that a criminal offence has been committed. It underlines what we have all agreed—that when there has apparently been a breach of interdict, there is a discretionary power of arrest. There is no presumption that that power will not be exercised merely because there is not a circumstance which might give rise to a criminal charge.
I must put the argument in its most telescoped form. There is some virtue and value in adding these words to the statute in an attempt to deal with the misconceptions which still exist and mean that the matrimonial interdict, with the attached power of arrest, has not been used as frequently as the circumstances warrant and to make the statute stronger and more effective in achieving what was originally envisaged.

§ The Solicitor-General for Scotland
Amendment No. 13 would not alter the existing powers of the police. I appreciate that the hon. Member for Glasgow, Garscadden (Mr. Dewar) wants to emphasise that a constable may arrest a non-applicant spouse simply on grounds of suspected breach of interdict, even when no criminal offence has been committed.
The reference to a criminal offence would blur rather than clarify the distinction between this power of arrest and the power of arrest for an offence. The guidelines clarified matters concerning the power of arrest. As the hon. Member knows, we are examining them to see whether further clarification could usefully be made on this and other matters of concern.
The hon. Gentleman may recall that, in Committee, I said that I would raise this matter in any discussions that I might have with senior police officers. I fulfilled that undertaking when, like the hon. Gentleman, I was recently at Tulliallan. That is the better way in which to drive the point home. Such problems as might arise stem not from the terms of the legislation but from how it is implemented. In view of the undertakings that we gave in Committee to try to improve understanding of the provisions, I hope that the hon. Gentleman will be prepared to withdraw the amendment.

§ Mr. Dewar
I am somewhat alarmed to hear that the Solicitor-General has been following me to Tulliallan. I have been there twice this year. The first time I noticed some sinister gentleman from the Scottish Office at the 508 back of the room taking copious notes. I did not have that burden the second time, but I now realise that the master was making inquiries in person. I note that.
At a serious level, the amendment was worth tabling. If we had had more time I should have probed and argued a little further. I take the Solicitor-General's point and shall not insist on this matter. I am glad to hear that he has already put in hand his discussions with police officers. I hope that we get a gradual improvement of and more familiarity with the intentions of the 1981 Act. I recognise that there will be no overnight change of attitude. On that basis, and in view of the assurances offered to me by the hon. and learned Gentleman, I beg to ask leave to withdraw the amendment.