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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.