In September the Scotsman newspaper carried an article with the headline "Scottish Domestic Abusers Must Lose Child Contact Rights Until They Are No Longer A Danger". The article was based on the premise that the same justice system that can find someone guilty of domestic abuse can create risk of harm by awarding contact to children of the relationship.
The article highlights a gap in understanding between the criminal and civil court systems. It further highlights an apparently contradictory message being sent from the criminal courts - where the message is that complaints of domestic abuse will be taken seriously - and the message being sent out by the family courts, in which contact between children and both parents (regardless of any previous convictions for domestic violence) is a priority.
What is the situation in Scottish family courts?
So, how do the family courts approach contact cases where domestic abuse is an issue?
The starting point is that, in terms of the Children (Scotland) Act 1995, parents have parental rights and responsibilities. It is a common misconception that a parent has an automatic "right" to contact with their child post-separation, but in actual fact parental rights exist only to enable the parent to discharge their parental responsibilities, which include a responsibility to maintain personal relationships with a child (known as contact).
Issues can arise when the parent with the day-to-day care of the child feels that it would not be in the child's best interest to have contact with the other parent, because of concerns about risk of abuse.
The Family Law (Scotland) Act 2006 inserted provision for courts to consider the risk of abuse in making an order, or not.
In some cases, a parent with a violent past will not be awarded contact to a child because the risk of abuse is considered so severe as to counter-balance the presumed benefit attaching to contact.
Ideally, all children would be able to have a relationship with both parents. The benefits of that are known and there is a presumption in law that it is better for a child to have contact with both parents, than not.
In addition to concerns about safety, however, there are concerns about contact being used as a tool to visit psychological abuse upon a parent. The concept of coercive control is becoming better publicised and understood, with public awareness being raised around the ways in which abusive former partners can exercise control by for example limiting access to money, tracking their movements and isolating them from friends and family.
Do courts support child contact at all costs?
In England, a bill was presented to parliament but dropped as a result of the proroguing of parliament. Indications are that the bill will be re-introduced later this month. There is an ongoing review in England and Wales responding to organisations such as Women's Aid which argue that the family courts tend to support contact at all costs, to the detriment of children. In some countries such as New Zealand, no-one who has a conviction for a violent crime will gain contact to their child. Unsupervised contact could only be granted by the court if a judge was satisfied after considering a risk assessment that contact could be exercised safely.
In Scotland we have the Domestic Abuse Act, which criminalises coercive control. That Act came into force in April of this year. Thus far there have been no reported cases in which the provisions of that Act have been taken into account in a contact action, but we do anticipate further development in this area.
Get in touch
If you would like to speak to solicitors about any of these issues, please contact Amanda Masson, or get in touch with a member of our team.
- Glasgow Head Office call 0141 227 9545
- Edinburgh Office call 0131 247 2556
- Inverness & Highlands Office call 01463 795 035
- Shetland Office call 01595 480759
- Elgin Office call 01463 795 035