Law Reform (Parent and Child) (Scotland) Bill (Hansard, 4 March 1986)

The Earl of Selkirk
My Lords, I beg to move that the Law Reform (Parent and Child) (Scotland) Bill be now read a second time.
This Bill was passed through the other place on the nod at both Second and Third Reading, so up to this moment discussion upon it has not been recorded in Hansard at all. The draft is drawn from the Scottish Law Commission, a Report No. 82. I cannot fail to say how impressed I am with the manner in which they have examined this very delicate subject, the way they have taken careful consultation, and the way they have reached, I should say, a very careful and sensible decision. It is true that the position of children born out of wedlock has been improving in Scotland. But I am bound to say that they had a very long way to improve because they started from an almost absolutely negative position.
The purpose of this Bill is that there should be no difference so far as the law is concerned between a child born in wedlock and one who is not. Whatever anyone may say about the way in which children come to be born—and there are various circumstances from rape upwards—one thing is quite clear. The child itself has no responsibility for what happened. For that reason there should be no slur of background upon the child, and he should be free and encouraged to play a full part as a citizen of this country. That is what this Bill seeks to provide for. We cannot change opinions but we can fix the law so that it makes this quite clear.
This is what the Bill has done in the first clause. It provides that whether the child's parents were married or not, shall be left out of account in establishing the legal relationship". That means that so far as the law is concerned there will be no difference, subject to certain exceptions with which I shall deal. The whole of the rest of the Bill hangs from that declaration. It is hoped—and I believe that it may be successful—that the words "legitimate" and "illegitimate", "lawful" or "unlawful" or "bastard" will fall out of statutory use altogether. The commission does not recommend inventing another word which would say the same thing. That is something where public usage will apply, and they will have to make their own exceptions.
The main object—and it surprises me in a way that it should be necessary—is to give the mother whose child is born out of wedlock parental control. It may seem strange that it should be necessary but up until now she has only had custody of the child. However, she will now have the normal duties as tutor and curator—as it is called in Scotland—which will give 128 her responsibility for education, religion, and I hope that manners and good behaviour may be added at the same time.
On the other hand, the father, where there is no married state, is in a rather different position. He may have disappeared. He may show no interest in the child at all. In those circumstances he can be given parental controls but only by application to the court. This applies to cases where he has shown that he wants to exercise the proper duties of a father.
A principle is laid down which runs through this whole Bill: that it is the court's duty to consider the welfare of the child as of paramount interest. That would be the consideration which the court would apply if it wishes to allow the father to assume parental responsibility.
If we move to Clause 5 the presumption that the husband of the marriage is the father remains as before except that it can be rebutted by a slightly easier presumption: that is, on the "balance of probabilities" instead of "sufficient evidence". Clause 6 provides for taking blood samples in all cases where there may or may not be someone with parental care and in certain circumstances the courts can give such authority itself. Blood sampling is a very advanced study at the present time and it is important in certain cases that it should be available. Clause 7 substantially repeats the existing law with regard to the declarator of parentage where, in this case, it is necessary to provide "sufficient evidence".
I have said that there are certain exceptions to this rule. These are exceptions which cannot be wisely covered by law. The first exception is that it does not apply to deeds or enactments passed before the coming into force of this Bill. This would be retrospective in character, and I think would be undesirable. It does not apply to a situation where deeds deliberately choose between those children born in wedlock and those not born in wedlock. It is perfectly natural to leave a person quite free to make a testamentary settlement as he wishes, just as he can divide boys from girls or one child from another child. This puts him in no different position in that regard.
The Bill does not extend to titles or honours transmissible on death. That is to say, it would not affect anybody in this House.
The practice must remain, I think, that a child born out of wedlock takes the domicile of its mother. Normally a child born in wedlock would take the domicile of its father, but if born out of wedlock this appears inevitable because the mother is the only person known in certain circumstances. This affects to some degree the British Nationality Act because it may be important whether or not he or she is a national of this country. However, I think we must recognise that we have signed a convention in regard to the legal status of children born out of wedlock and this Bill puts us fully in line with our duties under that.
Perhaps the House would be interested if I were to give one or two figures as to what was happening in this field. Over the last 20 years there has been a considerable increase in the number of children born out of wedlock. It now runs at about 17 per cent. of live births, which is an increase of something like threefold as a percentage in the last 20 years. It is, 129 however, significant to note that between 60 per cent. and 70 per cent. of families where there have been births out of wedlock are living today in stable conditions of cohabitation. That is quite interesting and perhaps I may say a word about that later. It is these families who will particularly benefit from the provisions of this Bill. I believe that this Bill is properly based. I believe that it is desirable. I believe that it is in line with public opinion at the present time. I beg to move.

§ Lord Morton of Shuna
My Lords, I warmly welcome this Bill, which will do much to remove the slur and stigma which has attached to people whose parents were not married to each other. For too long, as the noble Earl has said, society has put disadvantages and discredits on the child, who could do nothing about his birth, while leaving the father scot-free, usually, and the mother suffering to a lesser extent than the child.
The noble Earl, and particularly the Scottish Law Commission, are to be congratulated on the Bill, which I hope will meet with the approval of the House. As the disadvantages of a child born out of marriage are removed, I would suggest that it becomes more important that the status of marriage itself should be encouraged for the stability it brings to society. I would hope that the Government would recognise this, perhaps in tax changes which would give some advantage to the marriage state. It seems to me to be wholly ridiculous that at certain levels of income it is financially better for a couple to live unmarried than to live together married.

§ The Lord Advocate (Lord Cameron of Lochbroom)
My Lords, I too am very pleased to have this opportunity to declare the Government's support for this Bill. Indeed, as my noble friend Lord Selkirk has already indicated, the main purpose of the Bill is to remove those legal differences between individuals which depend on whether or not their parents are or have been married to each other, without however conferring parental rights automatically on all fathers. The basis for this reform is the view, which I think is now accepted, that it is fundamentally unjust for the law to discriminate against persons on the basis of the absence of the marital status of their parents.
The Bill is, in some senses, within a short compass but it covers an important reform of the law. I would also reiterate the hope which my noble friend expressed, and which I think is to be found in the report of the Scottish Law Commission, that this will pave the way for the gradual disappearance from the statute book of those adjectives which suggest bastardy.
As I have said, these proposals for reform are based upon recommendations of the Scottish Law Commission in its report on illegitimacy, and I would just note that we are now legislating upon a report which was issued in November 1983 and published in 130 early 1984. It is very pleasant to think that it has been taken up so quickly. The commission's recommendations were based not only upon a thorough examination of this area of law but, as is custom and practice, upon comments and views invited upon a consultative memorandum.
The results of that consultation confirmed the commission's view that it is anomalous and unjustified for the law to impose handicaps on those who have the misfortune to be born illegitimate. The Government are wholly sympathetic to the principle of the Bill and I have no reservations at all in recommending noble Lords to support these reforms. Therefore, I should like particularly to express my appreciation of my noble friend's commitment to sponsor this humane and worthwhile piece of social reform through your Lordships' House. Having regard to its sponsorship in another place, I suggest that this will be very much a family Act.
I also welcome the support which has been given by the noble Lord, Lord Morton of Shuna. I take note of what he said on what I was going to call a related topic—one which perhaps does not directly arise out of this particular piece of legislation. However, I have no doubt that my right honourable friend the Chancellor of the Exchequer will observe what has been said.
Like my noble friend, as seems to be entirely appropriate on this occasion, I should also like to pay tribute to the work done by the Scottish Law Commission which has led to the introduction of this Bill. The Law Commission's report follows the admirable tradition of its reports in setting out clearly and comprehensively the present law, the particular nature of the difficulties perceived, and then systematically and purposefully considering the various options for reform. It provides a lucid, detailed and cogent case for the reform of the law, and I would commend it to anyone who wishes to read a clear account of the law in this area. My own reading of the commission's report leaves me in no doubt as to the desirability of supporting this Bill.

The Earl of Selkirk
My Lords, I am very grateful to my noble and learned friend the Lord Advocate for supporting this Bill from the Government Bench. I also agree with the compliment that he has paid the Law Commission, which I believe has done a very great job. I recall that when the commission was first set up, which was when the noble and learned Lord, Lord Gardiner, was Lord Chancellor, I was critical as to how it would be used, but I think that the very best use has been made of it and it is an extremely valuable instrument to assist Parliament.
I should like to thank the noble Lord, Lord Morton of Shuna, very much for his remarks. He has raised an extremely important point. Today we are making it slightly less necessary to be married. I believe that this is a message which I would ask my noble and learned friend to pass on, perhaps to the Chancellor of the Exchequer: it is high time that the advantages of marriage were shown in the taxation system of this country. I am sure many of us know people who say that it would be cheaper to get divorced, and there are also many people who have stable relationships who do not bother to get married. More and more people 131 perceive financial advantages in so doing. In some cases, for a man and a women to get married may cost £1,500 in allowances each year, depending on the man's circumstances. I shall not carry this argument further, but it is not a matter which should be wholly lost sight of when this Bill is being examined in its context. My Lords, I beg to move that the Bill be now read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.