Improving Scottish Family law

7. Parental Responsibilities and Rights: Violence

7.1 Introduction

7.1.1 The key principles of family law which are listed in the Foreword to this paper promote the best interests of children and seek to avoid acrimony. These also support the view that both parents should normally have responsibility for the raising of their children - even after separation or divorce. Part I of the Children (Scotland) Act 1995 is based on such principles, and it is the Government's hope that - in the majority of cases - this will lead to improved family life.

7.1.2 At a number of places the Act provides for the best interests of the child to be a governing factor, for example:- the carrying out of parental responsibilities11 when the court is considering making an order relating to parental responsibilities, parental rights, guardianship etc.12

7.1.3 The second provision mentioned above requires a court to have the child's welfare as its paramount consideration. The court is also required not to make an order in relation to the child unless it considers that it would be better for the child that the order should be made than that no order should be made. Thus, a court, when deciding to make an order depriving a parent of some or all of his or her parental responsibilities and rights, will focus upon the welfare of the child.

7.1.4 Unless it can be reasonably argued otherwise, the court may presume that it would be in the best interests of the child for both parents to maintain personal relations and direct contact with the child. The provisions in sections 1 and 2 of the 1995 Act support this position. Those sections give parents both a responsibility and a right, if the child is not living with them, to maintain personal relations and direct contact with the child on a regular basis.13

7.2 Potential problem relating to domestic violence

7.2.1 An issue has been raised with the Government which may require further examination, and on which views are sought. This relates to the presumption in the 1995 Act which relates to the best interests of the child (as described above) and how this can impact upon the position of others in circumstances of domestic violence.

7.2.2 Domestic abuse may be a factor in relationship breakdown, but in considering the future parenting of a child the court may not consider that this is a reason to deprive the abusive parent of contact or regulate the contact for example by providing that it should only take place under supervision. The victim of violence may not be able to argue for no contact or supervised contact if the child has not been a victim of the abuse. Such contact can in some circumstances be the occasion for further abuse by the abusive parent, for example when collecting or delivering the child. Or it may enable the abusive parent to undermine the child's relationship with the parent with whom the child resides by criticism, by prying into that parent's circumstances and relationships and other such controlling behaviour. Abused women have reported that their concerns about contact have not influenced the courts and that the welfare of the child in fact suffers because of divided loyalties and the stress of being used by the abusive parent against the victim. We would welcome views on whether domestic abuse should therefore be identified as a special issue in the 1995 Act.

7.3 Options for reform

7.3.1 There would appear to be various ways of dealing with the situation described above. A number are described below. Not all would involve making amendment to legislation.

7.3.2 A relatively straightforward solution might focus on better argument of the case in court at the time of the action. It would seem possible that counsel (or solicitor) should be able to argue that, if there has been a history of domestic abuse against one parent, then there is a risk of harm (either physical or mental) to the child. The argument could then follow that it would not be in the child's best interests to maintain contact with the parent who has inflicted violence on the other parent. This argument could be open to be rebutted, for instance if there had been a change in behaviour and the person was no longer violent or deemed to be a risk. More extensive deliberation about domestic violence, such as in the context of the Scottish Partnership on Domestic Violence, may lead to greater awareness of the problem and the putting forward of such arguments in relevant cases.

7.3.3 A second solution might be for the victim to accept contact but to seek an order requiring contact between the child and the violent parent to take place at a neutral location. Local mediation services affiliated to Family Mediation Scotland run contact centres which allow for this and which involve practices that prevent the potentially abuse parent meeting his or her former spouse. It is understood that domestic abuse has been an issue in some 25% of families receiving assistance from mediation services. A further variant would be for the victim to argue for supervised contact only.

7.3.4 Thirdly, it would be possible to amend the 1995 Act to take more account of situations where there has been a history of abuse by one parent upon the other. It would only be reasonable to make provision in circumstances where an order in relation to parental responsibilities and rights was being sought under section 11 of the Act. Such a provision could sit alongside that in section 11(7)(a) of the Act described above. The amendment would expressly require the court to take into account any history of domestic abuse by one parent against the other in determining whether a parent's right of contact should be removed or restricted. The court would also have to take account of the possible risks of further contact both to the parent who has been the victim and the psychological welfare of the child.

7.3.5 The options above are not exclusive. There may be others. In addition, the scale of the problem is as yet unknown. The first two options mentioned may be implemented without amending legislation. However, the Government would not wish to adjust the balance of the provisions in the 1995 Act without reasonable information as to the extent of the problem or without considering carefully the effects of such an adjustment.

7.4 Summary of questions on parental rights: violence

Question 19: Where domestic abuse as been a factor in relationship breakdown, the Government seeks views on the extent to which contact by a child with the abusive parent presents a risk to the parent with whom the child lives, and through that a risk to the psychological welfare of the child.

Question 20: Views are sought on possible judicial solutions to this potential problem.

Question 21: Views are sought on whether to amend the 1995 Act to take more account of situations where there has been a history of abuse by one parent against the other. In particular, comments would be welcomed on a provision which expressly requires the court to take into account any history of domestic abuse by one parent against the other; and, in determining whether a parent's right of contact should be removed or restricted, the possible risks of further contact both to the parent who has been the victim and to the psychological welfare of the child.