Child contact cases involving domestic abuse – the laws protecting children from harm

Domestic abuse has worsened during the coronavirus pandemic. Campaigners have worked to raise awareness and ensure that support services are able to cope with the increased numbers of people seeking help. Data from Women’s Aid highlighted that abuse was amplified by the isolation of lockdown and the loss of external support networks. Many victims found themselves effectively ‘locked in’ with their abuser and cut off from friends, family and options to move.

The impact of domestic abuse on children is also well known. We understand that children do not need to witness abuse first hand to be negatively affected by it. The trauma can be long-lasting and have significant impact on their health and development. The pandemic has highlighted the pivotal role schools play in safeguarding and identifying children who are at risk of harm and impacted by domestic abuse.

Legislation on domestic abuse

Societal attitudes to domestic abuse have changed over time and the Scottish Government has committed to tackling this issue as a priority. Legislative developments have resulted in significant legal remedies for victims. Most recently the Domestic Abuse (Scotland) Act 2019 created the criminal offence of coercive control, recognising that a significant proportion of domestic abuse is psychological in nature. The Act explicitly acknowledges the harm caused to children by growing up in an environment where domestic abuse is occurring. An offence is aggravated, meaning the penalty increased, if a child is affected by it. The child need not observe the abuse, or understand the behaviour for the offence to be categorised as aggravated. It is sufficient in law that a reasonable person would consider the behaviour “likely to adversely affect” the child. This in itself is a leap forward in the response to, and condemnation of, domestic abuse.

How do courts deal with domestic abuse in disputes involving children?

Despite these formidable protections and enlightened attitudes, the family court system is often maligned in terms of how it responds to cases involving contact between a child and parent who has been accused or convicted of domestic abuse. A recent decision of the Sheriff Appeal Court provides an opportunity to consider whether such criticisms are justified.

There is an established legal framework in Scotland for cases in which parents cannot agree on what is best for their child. The Children (Scotland) Act 1995 provides that the Court must have the welfare of the child as its paramount concern. In asking the court to grant any order for contact with a child, the court must be persuade that it is in the child’s best interests and better for the child than no order being granted.

In 2006 this Act was amended to insert provisions 11(7A) to (7E) which further strengthened the protection of children from the effects of domestic abuse. In any court action considering orders relating to a child it imposes a duty on the court to consider:

• The need to protect the child from abuse or risk of abuse
• The effect abuse, or the risk of abuse, may have on the child
• The ability of a person who has, or may carry out abuse, to care for the child
• The effect any abuse, or risk of abuse, may have on a person with caring responsibilities for the child

Family law in Scotland therefore has significant protections for victims of domestic abuse and a clear framework for ensuring this is factored into any court decision which may affect a child. Accordingly, any criticism of the family court system would at first blush seem to be unwarranted. However it may be argued that the progressive legal framework and enlightened policy making has not yet filtered through to all decisions made in Sheriff Courts throughout Scotland on a day-to-day basis.

A recent example

The recent Sheriff Appeal Court judgment in appeal by LRK v AG issued by Sheriff Principal Pyle concerned an appeal from such a decision of the Sheriff Court. In the first instance the Sheriff was asked to grant contact to a father who had not seen his seven-year-old daughter in five years. The father had been convicted of serious domestic abuse offences and served 12 months in prison. Some of these offences involved threats to the child’s mother to set fire to the home whilst the child was present and assaulting her by attempting to force her to eat dog faeces. He had also subsequently breached a Non-Harassment Order. Notwithstanding the conviction and extreme offences the Sheriff concluded that because domestic abuse was not ongoing, historical abuse was insufficient to prevent contact from taking place. He awarded the father supervised contact.

This decision was appealed to the Sheriff Appeal Court. The Sheriff Appeal Court upheld the appeal and determined that the Sheriff had failed to take into account all relevant considerations in terms of 11(7A) to (7E).

The Sheriff Appeal Court was also critical of the Sheriff’s decision not to seek the views of the child. He had simply concluded that she was too young to express views and that seeking to obtain these would not be helpful. In so doing the Sheriff had failed to address the legal test of impracticability.

The Court’s obligation is to assess the practicability of ascertaining a child’s views. This is reflected in article 12 of the United Nations Convention on the Rights of the Child (UNCRC) which provides:

“1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child; and
2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

Upcoming changes to the law

Substantial impending changes in the form of the Children (Scotland) Bill 2020 will update the 1995 Act and bring Scots child law closer in line with the UNCRC. Section 11ZB, which is not yet in force, was considered by the Sheriff Appeal Court in this case because it provides detailed guidance on the duty to ascertain the child’s views. In terms of this new provision the Court must:

• give the child an opportunity to express their view
• in the manner preferred by the child
• or a manner suitable to the child if they have not indicated such a preference
• have regard to any views expressed by the child taking into account their age and maturity
• presume the child to be capable of forming a view unless the contrary is shown

This appeal was therefore successful on two points. The Sheriff had failed to take all relevant considerations into account when assessing the need to protect the child from the risk of abuse. The Sheriff also failed to discharge his duty to address the legal test of practicability of ascertaining the child’s views. He was bound to ascertain them unless as a matter of practicability it was impossible to do this. The result was the case being sent back to the lower Court for another Sheriff to consider.

What this means for children and families

This judgment provides clarity and guidance on the robust legal framework which exists in Scotland to govern decisions affecting children. It affirms the safeguards which have been translated into law to protect children from the impact and harm of domestic abuse. It should reassure victims of domestic abuse that the family court cannot view historical abuse in isolation when making decisions about a child’s residence and contact arrangements.

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Our family law team is made up of experienced family law solicitors around the country. Many of our team are trained in various methods of dispute resolution, including mediation and collaborative practice, and are Accredited by the Law Society of Scotland as specialists in their field.