Guest Blog by Researchers for "Domestic Abuse and Child Contact: The Interface Between Criminal and Civil Proceedings"
In this blog, Michele Burman, Ruth Friskney, Jane Mair and Richard Whitecross discuss their research on the operation of family law in child contact cases where there is a background of domestic abuse.
The Scottish Women's Rights Centre is excited to share the contents of this research with you. This blog is reflective of the findings by Michele Burman, Ruth Friskney, Jane Mair and Richard Whitecross and not written by the SWRC.
While Scotland has made important legislative and policy steps forward in terms of the criminal justice response to domestic abuse, far less attention has been given to how domestic abuse impacts on civil law proceedings concerning child contact. Little is known about how child contact proceedings work in practice, the extent to which the treatment of domestic abuse in the civil courts reflects criminal practice, or whether and how 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.
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 disagreements over child contact. In particular, we were concerned to determine whether and how relevant information about domestic abuse is accessed by the civil courts in child contact cases, how this information is considered in court proceedings and how it affects decision-making by the court.
Our research found that there is no formal process in place for the civil court to obtain relevant information about domestic abuse. Criminal and civil proceedings involving the same family may 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 communicated to the civil system.
Family lawyers heavily rely 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. In our survey, our findings demonstrated that:
- Most solicitors said that they do not routinely ask about domestic abuse, unless it is raised by their client.
- While most said that they would inform the court if made aware of domestic abuse, some suggested that it could depend on whether the allegation related to their client or to the child.
Clearly, 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 cases, as well as affect decision-making by the court in a child contact case. Importantly, lack of awareness of domestic abuse, its impact and the outcome of any linked criminal cases may compromise the safety of the child and the non-abusive parent.
Even where domestic abuse is raised at an early stage, the court process can limite how much consideration is given to the impact, or other factors around domestic abuse. We found that family lawyers think the court is limited in its ability to consider domestic abuse as a factor in a child’s best interests. They also think 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
- 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 specialist format of Child Welfare Hearings, and their problem-solving focus, mean there is limited opportunity for testing of evidence.
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. Generally, domestic abuse was only considered relevant to child contact if the child specifically witnessed domestic abuse, which in this context is understood primarily as physical violence directed at or in the presence of the child. This is at odds with the widely held view that potential harm to children is not limited to situations where children ‘witness’ domestic abuse. It also 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, within the civil courts domestic abuse is presented 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 cases is placed at risk by subsequent ill-informed decision making.
It is clear from the research that there is a lack of joined up thinking and action between criminal and civil systems in cases involving domestic abuse. Addressing this will require strong political will and collaborative action by criminal and civil justice agencies and relevant statutory organisations. Two distinctly different systems need to find new ways of working together if their separate aspirations of tackling domestic abuse and providing child-centred justice are to be delivered.
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 domestic abuse is relevant to 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. We also 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.
Solicitors play a key role in child contact cases, a point which was repeatedly highlighted in our research. They are often the first port of call for women and the questions that solicitors ask about domestic abuse, how they ask them and what they do with the answers are key to shaping the subsequent court process in respect of child contact. It is essential that family law solicitors have an understanding of domestic abuse legislation and develop informed practice when working with clients. The new SWRC Domestic Abuse Training for Solicitors is a welcome initiative and has a key part to play in addressing some of the concerns raised in our research.
The report, ‘Domestic Abuse and Child Contact: The Interface Between Criminal and Civil Proceedings’ was commissioned by the Scottish Government,
An Executive Summary can 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.