Family Law in Scotland (5^th Ed)

Joe Thomson

£42.00, Tottel Publishing, 2006

Family law is one of the fastest growing areas of the law and Joe Thomson’s book spans the subject succinctly and with admirable lucidity.

The first edition, published in 1987 ran to 221 pages. Nineteen years later the seventh edition is nearly double that length. The developments since 1987 are placed in historical context, explained and reviewed. The law relating to marriage is explained alongside the law relating to civil partnership. New provisions for cohabitants are explored. The second half of the book is devoted to child law, which is now far from child’s play. The author has chosen to include the Parenting Agreement for Scotland and the Charter for Grandchildren as appendices, indicating a concern for policy as well as black-letter law.

This is an excellent starting point for any would-be family lawyer, and for practitioners exploring the dimensions of a particular case. A major aspect of the value rightly to be placed on the book is that it brings together an explanation of the impact of considerable body of legislation on family life. Several key issues are explored by way of practical examples. There are full and interesting discussions of a number of areas, such as medical procedures in relation to children. In the interests of brevity some areas receive limited treatment; for example the section on child abduction and the effect of new European regulations is brief to the point of being incomplete.

The author is disarmingly frank about some aspects of the law. The attempts in the Family Law (Scotland) Act 2006 to define “cohabitant” are described as “intellectually incoherent”. The statutory criterion for adoption involving consideration of the child’s welfare throughout life is noted to be “ludicrous”. The reader may or may not agree, but the style is thought-provoking and engaging.

If any criticism is to be made of the book, it is in areas relating to practice and procedure. Traps for the unwary in undefended divorces go unnoticed as the subject is dismissed in a few sentences. The abolition of the competence test for child witnesses is overlooked. The difficult relationship between an applicant for aliment for a child, a registered agreement and a child support assessment is not fully explored. These are however minor cavils, in relation to a work that is now a recognised and respected part of a family lawyer’s library. It is a matter of considerable relief that Tottel Publishing have taken over and continued to support this volume, following the departure of Butterworths. Scottish family lawyers do rely on the talents of Joe Thomson to guide them through the morass into which the law is growing.

Janys M Scott, Advocate

SCOLAG Journal, July 2007

The physical transformation of this well-established text is a neat metaphor for the very real transformation which family law has experienced since the previous edition in 2002. Tottel, the new publishers, have provided a decidedly better format – larger font and a clear, fresh layout across 442 pages – that well serves an informed and engaging commentary.

The "real transformation" was the Civil Partnership Act 2004, which has entailed a significant reorganisation of at least the first eight chapters. In his Introduction to the fourth edition Professor Thomson explained that "although it is under considerable strain, the traditional taxonomy of the subject should not yet be jettisoned. Accordingly, the law of husband and wife remains the starting point of this study". Four years later, the fifth edition is a study "of three legal regimes, viz marriage, civil partnership and cohabitation (whether opposite or same sex)".

It is a mark of the author's fluent style that this rapid regime-change has been accommodated so seamlessly. Practitioners and others familiar with the book will be pleased to find that Professor Thomson has incorporated reference to civil partnerships or cohabitation within the existing chapter structure. There is one completely new chapter, "Cohabitants", which details the main provisions affecting heterosexual and same-sex partners, often introduced by the Family Law (Scotland) Act 2006. Other major legislative changes considered are the Gender Recognition Act 2004, and the then Adoption and Children (Scotland) Bill. The accessible and expert analysis associated with Joe Thomson's scholarship is in evidence throughout.

The emphasis is firmly on Scots law, as one would expect. But one wonders whether in the future Scots family law will be more influenced by developments in Europe towards harmonisation, as well as by further challenges under the Human Rights Act. In regard to the latter, significant cases such as Salguiero da Silva Mouta v Portugal (2001), Goodwin v UK (2002), and B and L v UK (2004) are discussed, but family law has not produced as many challenges as some commentators expected.  Civil partnerships will no doubt generate their own specific set of contested issues, and we can look forward to lively discussion about these in due course.

Fiona E Raitt, University of Dundee

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