In this blog, Professor Richard Whitecross outlines research undertaken with Professor Michele Burman, Dr Ruth Friskney and Professor Jane Mair on the operation of family law in child contact cases where there is a background of domestic abuse.
Background to the study
In March 2023, the Justice Committee held a post implementation Scrutiny event looking at the Domestic Abuse (Scotland) Act 2018. Scotland has made important legislative and policy steps forward in terms of the criminal justice response to domestic abuse, however less attention has been given to how domestic abuse impacts on civil court actions such as child contact orders. At present, there is limited research on civil actions and how child contact proceedings work in practice. Our research sought to investigate the extent to which the treatment of domestic abuse in the civil courts reflects criminal practice, and whether the interpretation and application of the civil law statutory provisions are informed by contemporary understandings of domestic abuse and changing definitions or practices in the criminal law.
The Research
Our research involved an online survey (n=38) and interviews (n=15) with family law practitioners to seek their understandings of domestic abuse and how this informs their handling of child contact cases, and their views and experiences concerning the interaction between criminal justice and civil justice in cases in which a parent has been prosecuted for domestic abuse in the criminal courts and there is a child contact case in the civil courts. We were concerned to determine whether and how relevant information about domestic abuse is accessed by the civil courts in child contact case, how this information is considered in court proceedings and how it affects decision-making.
Our Findings
Our research found that there are no systematic mechanisms for the civil court to obtain relevant information about domestic abuse. Criminal and civil proceedings involving the same family impact on each other. For example, decisions made in criminal processes concerning bail conditions and non-harassment orders can have a direct impact on child contact decisions. Yet, information about criminal proceedings or outcomes are not consistently conveyed to the civil system.
Family lawyers are heavily reliant on their clients telling them they have been subjected to domestic abuse, or that their ex-partner is alleging/has alleged domestic abuse, or that there are previous or ongoing criminal justice processes. This means that there is a risk of partial or inaccurate information being provided. Lack of information about domestic abuse can potentially lead to delays in case preparation and hinder the progress of civil proceedings, as well as affect decision-making in a child contact case. Importantly, lack of awareness of domestic abuse and the outcome of any associated criminal proceedings may compromise the safety of the child and the non-abusive parent.
There were varying views concerning the risk of harm posed to children by domestic abuse, reflecting a worrying lack of awareness of how domestic abuse affects children. Some family lawyers felt that children may not always be at risk of or affected by domestic abuse, that this was dependent on context and that only physical violence directed at or in the presence of the child would be relevant. Generally, domestic abuse was only considered germane to child contact if the child specifically witnessed domestic abuse or was a victim of it. This is at odds with the widely held recognition informed by research that potential harm to children is not limited to situations where children ‘witness’ domestic abuse and is in some contrast to the Domestic Abuse (Scotland) Act 2018 which specifically recognises the ‘adverse impact’ on children of experiencing domestic abuse, without the need for them to specifically witness it. In contrast, the civil courts appear to perceive domestic abuse primarily as a dispute between adults rather than a (gendered) crime with adverse impacts on children. The lack of understanding around harm may mean the child at the centre of these contact orders is placed at risk by subsequent ill-informed decision making.
We also found that family lawyers think that the court is limited in its ability to consider domestic abuse as a factor in a child’s best interests, and that the provisions of the Children (Scotland) Act 1995, requiring domestic abuse to be considered in child contact cases, do not always read through into practice. Key reasons given for this are that there is insufficient “space” in child contact proceedings to properly and effectively consider domestic abuse and its impact on the child; that domestic abuse is largely perceived as an “adult matter”, and; that there is a prevailing culture in family law which favours contact. It is evident that decision-making in family courts is underpinned by an enduring pro-contact philosophy.
The Recommendations
Based on our research, we propose 12 wide-ranging recommendations to address the concerns raised by the research. These include improving the flow of information between criminal and civil systems where there is a case of child contact, that ongoing criminal proceedings should be flagged on family court databases, and that expert risk assessment should be used to consider whether contact is in fact in the best interests of the child. Furthermore, we recommend compulsory specialised training of legal professionals working in the civil system to help safeguard children, and that child contact proceedings should pay greater attention to facilitating the child’s right to express their views and have those views considered by the court.
Coda: The Istanbul Convention
Since completing the research, on 1st November 2022, the UK has brought into force the Council of Europe Convention on preventing and combating violence against women and domestic violence, commonly referred to as the Istanbul Convention.
Chapter V addresses matters of substantive law that sets out a checklist for States that include both civil and criminal law provisions. Art.29 requires the State to “provide victims with adequate civil remedies”. Significantly, in the context of child contact, Art. 31 requires the State to take “the necessary legislative or other measures to ensure that, in the determination of custody and visitation rights of children, incidents of violence covered by the scope of the Convention are taken into account”. Furthermore, the Convention notes that the withdrawal of parental rights can be possible “if the best interests of the child, which may include the safety of the child, cannot be guaranteed in any other way” (Art. 45(2)).
It is clear from our research that there is a lack of joined-up thinking between the Scottish criminal and civil systems in cases involving domestic abuse cases. Addressing this may be given more impetus because of the entry into force of the Istanbul Convention in the UK, and potentially further reinforced by the proposed incorporation of the Convention on the Elimination of Discrimination against Women (CEDAW). The Istanbul Convention may form the basis for collaborative action by criminal and civil justice agencies and relevant statutory organisations.
The report, ‘Domestic Abuse and Child Contact: The Interface Between Criminal and Civil Proceedings,’ which was commissioned by the Scottish Government,
An Executive Summary can also be found at https://www.sccjr.ac.uk/publication/executive-summary-domestic-abuse-and-child-contact/ For more information about the project visit the Scottish Civil Justice Hub.
This is a slightly edited and extended version of a blog post for Scottish Women’s Right Centre.
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Professor Richard Whitecross is a founder of the Edinburgh Napier Centre for Child & Family Law & Policy. He is the Head of Law at Edinburgh Napier University, and is an expert on domestic abuse, gender violence and child contact law, in addition to broader issues relating to children’s rights and family law, and comparative constitutional law.