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Main Findings

• Civil case records involving applications for contact were examined in three sheriff courts - Dumfries, Dundee and Glasgow. A total of 90 case files were scrutinized, 61 of which were for contact. It is broadly estimated that around 2000 applications for contact are made each year in Scottish courts.
• Contact applications are often made as a secondary part of an action, such as divorce or interdict, and can be recorded electronically in the Court Management System (CMS) under a range of case types within family or ordinary actions. Individual courts record cases differently. Electronic searches of CMS underestimated the number of contact applications so that manual searches of records were required. While CMS is a powerful administrative tool, it is not currently a useful tool for research purposes.
• Allegations of domestic abuse are not systematically recorded in the CMS database but information may be found in paper records. Sheriffs are not always aware of allegations of domestic abuse at commencement of proceedings, since abuse is unlikely to be mentioned in initial writs. However, there is a general perception among respondents that abuse surfaces quickly and when it does, action is taken.
• Allegations of domestic abuse were mentioned in 18 (30%) of actions involving contact. In 11 (61%) of the cases allegations were made against fathers. Allegations involving new partners featured in 5 cases, and in 2 cases allegations were made against mothers. Contact was granted in over half of such actions. The most common form of contact granted was 'supervised'.
• Child welfare hearings were held in 87% of contact cases and in all cases where domestic abuse was mentioned. Agreements about contact were reached in the majority of hearings. Child welfare hearings were perceived by some respondents to be a less adversarial forum than open court for discussing arrangements for contact.
• There were 90 children involved in 61 contact applications. 44% of children were aged 8 years and over. Of these 58% expressed their views in some manner. Only in the most complex cases were children invited to speak to the sheriff. Children's views were gathered most often by curators and solicitors. In very few cases were children separately represented.
• Contact centres or handovers using third parties were the options most used when supervision was required. Courts understanding of supervised contact did not normally include high vigilance where parties were supervised at all times. There was confusion over the terms 'supervised' and 'supported' contact and what this meant in practice, with the two terms often used interchangeably among respondents.
• Contact centres were not always available in rural areas and families had to make their own arrangements. Respondents from support agencies were critical of the lack of vigilance in contact arrangements and expressed concern for the safety of those involved.
• Data on the outcomes of contact decisions are not available using the sources interrogated in this feasibility study. Future research should aim to evaluate the effectiveness of contact arrangements where there has been a history of domestic abuse. This would require a longitudinal research design.

Introduction

The National Strategy to Address Domestic Abuse in Scotland was developed in 2000. One of the first priorities for the National Group was to establish a Working Group to examine legislative provision relating to domestic abuse. The Working Group was particularly concerned to address the granting of contact applications to fathers where there were allegations of domestic abuse. There was growing concern that continuing contact between children and violent fathers had been used as a route to further abuse
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Little was known about the nature and extent of contact applications in Scotland, how many had been awarded and what proportion were associated with domestic abuse. This feasibility study aimed to explore this area more fully, by looking at the availability, quality and reliability of data from court records on child contact applications and allegations of domestic abuse. The study also aimed to assess how the available data could be used and the potential role of primary research.

Methods

Two key methods were employed. Firstly, records were examined in 3 sheriff courts (Dumfries, Dundee and Glasgow) to estimate the number of contact applications and to assess the extent and quality of information contained in records. In total 90 records were scrutinized and information entered into a database for analysis.

Secondly, interviews were conducted with 17 key individuals including sheriff court staff, sheriffs, solicitors, representatives from support organisations and those managing contact. The aim of the interviews was to describe procedures used by courts, to assess how decisions about contact were made and to identify how arrangements for contact were organised.

Identifying Relevant Records

Identifying relevant records was not straightforward. Courts store paper records in manual filing systems and have electronic records of cases in the Court Management System (CMS) database. Electronic searches underestimated the number of contact applications so that manual searches of records were required.

Cases can be recorded in CMS under ordinary and family actions using the primary crave. However, individual courts record cases differently. In Glasgow, all contact cases are recorded in family actions while Dundee records most contact cases in ordinary actions. Contact applications are often made as a secondary part of an action, such as divorce or interdict, and can be recorded electronically under a range of case types within family or ordinary actions. Some courts record all of the craves in an action which can help in searching for contact cases. Other courts record only the first or main craves and therefore contact may not appear within CMS. There is no standard inputting of data to CMS and spelling errors in the craves field hamper complete electronic identification of cases.

Although information on domestic abuse was found in paper records, it was not systematically recorded in CMS. CMS is a powerful administrative tool but has not been designed with research purposes in mind. Information contained in the database reflects this priority. Significant changes would have to be made to both the database and court procedures before CMS could be used for research of this nature. Any major changes to CMS would be costly.

Court Record Selection

Sheriff court staff provided information on how contact cases could best be identified. In Dumfries and Dundee courts the CMS database was searched to generate contact cases. In Glasgow a random sample of cases recorded in the "contact" case type were selected. In Glasgow and Dumfries additional cases were selected where contact may have been craved. A 1 in 10 sample was drawn from all Glasgow family actions to estimate the total number of contact applications in any on year. In total, 154 case files were examined and 90 were found to be relevant to the study; of these 61 were for contact.

Annual numbers of contact cases were estimated for Dundee and Glasgow populations and extrapolated to generate a national estimate. It is estimated that around 2000 such applications may be made in Scotland each year. However, this figure should be treated with caution.

Court Procedures

Of the 3 courts chosen only Glasgow had a separate family court. The principle underlying the initiative is that resolution of cases can best be sought by negotiation. Family courts have dedicated sheriffs and these were considered to bring enhanced continuity to the process and made monitoring of contact more effective. Other courts were progressing along this route with separate civil premises planned for Dundee.

All courts take similar approaches to family cases. Child Welfare Hearings (CWH) are held regularly in courts, usually in pre-arranged 15 minute slots. There is general agreement that these have resulted in decisions being made quicker and with less conflict and fewer cases going to proof (only 5% were found in this study). Experienced practitioners are regularly appointed by courts to report on a case where domestic abuse is a concern, and information can be heard in CWHs.

Analysis of Court Records

Contact cases can be found across all family and ordinary actions. In only 36% of cases was contact the first crave. In Dundee Declarator of Paternity was the first crave in the majority of actions; whereas Parental Rights and Responsibilities was the main crave in Dumfries.

Table 1: First crave in contact cases

The status of parties in contact cases varied between courts; there was a higher proportion of cohabiting applicants in Dundee than elsewhere.

Table 2: Status of parties in contact cases

In 85% of cases the pursuers were fathers, in 7% they were mothers and in 8% they were grandparents or siblings.

Legal Aid

According to the information held in court records, legal aid was provided in 59% of contact cases. Of these, 5% were cases where both parties were aided. Twice as many pursuers as defenders received legal aid; 43% of pursuers and 21% of defenders. However, it is important to note that reasons for non-award of legal aid were not available in court records.

Domestic Abuse

Allegations of domestic abuse were mentioned in 18 (30%) of contact cases. Abuse was alleged against fathers in 61% of such cases (Table 3). Drug and alcohol misuse featured in a quarter of applications and overlapped with abuse. Descriptions of abuse ranged from aggressive text messaging, shouting, punching walls to physical and sexual abuse. Sheriffs were generally unaware at the beginning of proceedings if domestic abuse was an issue. However, there was a perception among respondents that an allegation of abuse tended to surface quickly and when it did, action was taken.

Table 3: Abuse raised in contact cases

Contact was granted in over half of actions where domestic abuse was raised 10 (56%). In 2 cases a joint minute of agreement was prepared. In 6 cases (34%) contact was either refused, or no order made.

CWHs took place in 87% of contact cases and in all cases where domestic abuse was mentioned. A curator or solicitor was appointed in half of such cases.

Children's Views

The 61 contact cases examined involved a total of 90 children. Children's views were gathered in a number cases, most frequently using the Form F9. Approximately 44% of children were aged 8 years and over in the dataset. Of these, 58% expressed their views. In 10 cases there were reasons given why this did not occur. If these cases are removed from the analysis then 77% of children expressed their views.

Reports from solicitors and curators were often included in the court records and there were some instances in which children's letters were in court files. Few children were separately represented.

The sheriffs interviewed expressed reluctance to have children in court because of the adversarial nature of proceedings, but some reported that they spoke to children in chambers.

Quality and Reliability of Information

Reports by curators and solicitors and children's letters alongside the initial writ were the most useful sources of information. Information contained in initial writs is likely to under-record the incidence of domestic abuse, since if a pursuer is a perpetrator then it is unlikely that abuse will be mentioned. It is difficult to know if domestic abuse is an issue when a mother is pursuing a divorce action since there is no obligation to mention abuse in proceedings. Furthermore, practitioners may not give too much detail about abuse in order to facilitate proceedings.

Why an action was unopposed was, at times, unclear. The reason given most often was "not in the interests of the child" with little further explanation. Close reading of reports was necessary to assess the reasoning behind decisions.

Decisions on Contact

There was awareness of the potential for abuse to continue in a contact situation, but there was a perception among some respondents that courts had adequate powers to prevent this happening, including the use of contact centres. There was some confusion over what centres provided; the terms "supervised" contact and "supported" contact were used interchangeably by respondents.

Respondents suggested that the availability of local services to monitor contact can affect the orders courts make and may affect the safety of those involved. Voluntary organisations such as Family Mediation Scotland, the Women's Royal Voluntary Service and One Parent Families Scotland were the main providers of contact centres in the study areas. These were used most often by the courts when supervision by a third party or supported contact was required. Solicitors and curators assessed the availability of services and organised contact on behalf of courts.

However, contact centres were not always available in rural areas and families had to make their own arrangements. Support agencies were critical of the lack of vigilance in contact arrangements and expressed concern for the safety of those involved.

Future Research

This feasibility study shows that most of the research objectives set out at the beginning of the research process could be achieved:

However, primary research has a key role to play in future research, particularly if there is interest in the outcomes of contact decisions. It could provide more information about the process of decision making and longer-term outcomes for those who are subject to contact orders. Data on outcomes are not available using the data interrogated in this feasibility study.

In summary, future research should aim to evaluate the effectiveness of contact arrangements where there has been a history of domestic abuse and specifically assess the relationship between contact decisions and further abuse. This would require a longitudinal research design following up those affected by contact arrangements.

1 National Strategy to Address Domestic Abuse in Scotland - 2003 Conference, p.4
2 Domestic Violence and Child Contact Arrangements, Findings, Social Policy Research 100 June 1996 Joseph Rowntree Foundation , p3