“Most respondents favoured a statutory checklist but there was significant opposition from legal consultees who feared that it could lengthen proceedings and cause judges to adopt a mechanical approach to going through the list even in, say, an application for a minor variation in an order.”
4.77The Commission did not favour a lengthy statutory checklist. They suggested that even if there was not such a list in primary legislation, legal advisers and social workers could use their own checklists. In any event, the welfare principle was all encompassing. Their recommendations were accepted and no checklist is included in the Children (Scotland) Act 1995. However, the Commission recommended that the child’s own views ought to be taken into account and should not be seen as already included in the welfare principle.
Duty to approve arrangements
4.78Scotland has a similar provision to Hong Kong that a court must be satisfied in any divorce proceedings as to the arrangements made for any children of the marriage under the age of 16 in section 8 of the Matrimonial Proceedings (Children) Act 1958. The Commission criticised this provision :
“on the ground that the time of the legal divorce is rather late for bringing home to the parties their responsibilities for their children.... It places a duty on courts without giving them the means of fulfilling it. It may raise unrealistic expectations about what can be achieved. In practice there is no way in which a court can be fully satisfied that the arrangements for children are satisfactory.”
4.79However, the Commission did not recommend that an independent welfare report in all cases was the solution as it would be “an extremely expensive and wasteful use of resources”, as there may be no dispute about parental responsibilities or rights in some cases.579
4.80The Commission agreed with the English Law Commission’s view that:
“requiring the court to find the arrangements satisfactory may be imposing higher standards on those who divorce than on those who remain happily married.”
4.81The Commission’s views were grounded in a minimum interventionist stance:
“section 8 intervenes more in the child care arrangements of those who divorce than of those who remain unhappily married but live apart. It also treats those who marry and divorce as being more in need of intervention than those who cohabit and then split up.”580
579 Ibid at 5.31.
580 Ibid at 5.33.