The approach in Scotland to child contact disputes involving allegations of domestic abuse

ABSTRACT

This article considers the approach taken in Scotland to the processing of child contact cases in which there are allegations of domestic abuse. Four key features of the processing of cases which may facilitate outcomes that prioritise safety are considered. These are: the availability of legal aid; the cautious process of successive child welfare hearings; the use of child welfare reports; and the taking of the child’s views. All these features occur within a policy context that recognises domestic abuse as gender-based violence and where courts have a statutory duty to protect a child from abuse. Drawing on the author’s court based analysis of papers from 208 child contact disputes and from interviews with sheriffs, this article discusses the strengths and limitations of all four process features in terms of protecting women and children, and the risks to these features posed by perpetually reducing government budgets.

KEYWORDS:

• Child contact dispute
• child welfare reports
• domestic abuse
• legal aid
• legal process
• views of the child

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. The Scottish Civil Justice Council was established in 2013 by the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013, following the Report of Scottish Civil Courts Review (Gill, 2009).

2. These are local registered charities who provide free information and advice on issues such as housing, debt, consumer rights and family breakdown. https://www.cas.org.uk/about-us/consumer-advice

3. Article 7 UNCRC includes the right of the child to know and to be cared for by his or her parents. Article 8 includes the right of the child to preserve family relations and Article 9 includes the right of the child not to be separated from his or her parents against his or her will.

4. Previous court based research undertaken in Scotland found allegations of domestic abuse in 36% of cases (Scottish Executive, 2004).

5. In Scotland, child welfare reporters are usually family law solicitors. Currently there is no requirement that they undertake additional specialised training for the role of child welfare reporter. Where social workers are already involved with the family, they may be asked to undertake the child welfare report. At the time of this research, the appointment of a court welfare reporter was entirely within the discretion of the individual Sheriff. Since March 2016, court rules require that a court welfare reporter is only appointed if the court is satisfied that the appointment is in the best interests of the child, and will promote the effective determination of the issues.

6. Courts in Scotland have the power at common law to appoint a curator ad litem in respect of anyone lacking legal capacity. They are most usually a solicitor. They present to the court what they consider to be in the best interests of the individual who lacks legal capacity.

7. Since 2014, these petitions include PE01570; PE01513; PE01528 and PE01589.

8. A recent small-scale study with legal practitioners similarly concluded there remains a need for training of family practitioners (Whitecross, 2017).

9. In my dataset only 2% of cases were sisted [suspended] to enable the parties to attend mediation.

10. Under the rules of court it is the parties to these private law civil actions who have to pay for child welfare reports.

11. For a critique of research on child contact centres see Morrison and Wasoff (2012).

12. The father was described in the court of first instance as ‘sanctimoniously insensitive and dogmatic’: NJDB v JEG [2010] CSIH 83, para. 13.

13. There was insufficient information in the court papers to indicate whether the child’s premature birth was related to domestic violence.

14. Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Child Welfare Reporters) 2015, SSI 312/215.

Additional information

Funding

This work was supported by the Economic and Social Research Council [PTA-031-2006-00040]

Notes on contributors

Kirsteen M Mackay

Kirsteen Mackay is an independent socio-legal research consultant and continues to teach in the School of Law, University of Edinburgh and within the Faculty of Business and Law and Faculty of Wellbeing, Education and Language Studies, Open University, Milton Keynes, UK.