'The Times They Are A-Changin' : How The Law Views Fathers

Posted On: 06 June 2011

Author: Janys M Scott QC

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This article was originally given as a presentation by Janys Scott QC to Families Need Fathers at an event in Glasgow on 1 June 2011.

 

'THE TIMES THEY ARE A-CHANGIN'

Last week was Bob Dylan’s 70th birthday.  The father of modern rock sang that the times were a-changin’. His theme was that change had to be recognised. It was inevitable and we either joined the new world or sank like a stone. The last twenty five years have seen changes in the way in which the law has viewed fathers. There have been changes in the law’s recognition of the value of fathers. There has been increased acknowledgement in courts of the practical role of fathers. The need for involvement of fathers in decisions about their children has been endorsed. Times have changed. On the other hand change brings its own challenges. 

The Value of Fathers

In 1986 a short landmark decision was reported. This was the decision of Lord Dunpark in the Court of Session in a case called Porchetta v Porchetta[1]It was a divorce case where the parties had one son. The judge awarded custody (as it then was) to the mother. The father applied for access to the boy.  The judge refused access. He said:

“The father's application for access was made by him on his own admission, because he is the father. He gave no other reason for his application. A father does not have an absolute right to access to his child. He is only entitled to access if the court is satisfied that that is in the best interests of the child. The onus is on the defender to show that...None of the evidence which I heard suggests that it is in the best interests of the child that the father should have access at this stage. This child does not know his father nor does he need a father's influence at this stage. For whatever reason the defender has never had any contact with this child....The uncontradicted evidence is that the child is well adjusted and emotionally secure. There is not a shred of evidence to suggest that it would be in his best interests for his father to resume contact with him at this stage.” 

From that decision there emerged a line of thinking that a father did not have an entitlement to maintain contact with his child. If he had to resort to the court for an order for access or contact (as we now call it), he had to explain why contact was a good thing, and produce evidence to support the making of an order.  Well, times have changed. 

We owe a great deal to the Children (Scotland) Act 1995. This is in many ways a remarkable piece of legislation, because it changed the language of the law relating to parents and children, and by changing the language it changed the way people think about legal relationships with children. There are a number of key features.....

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[1] 1986 SLT 105