Child Contact Proceedings for Children Affected by Domestic Abuse A report to Scotland’s Commissioner for Children and Young People Fiona Morrison and E. Kay M. Tisdall, Centre for Research on Families and Relationships, University of Edinburgh Fiona Jones and Alison Reid, cl@n childlaw March 2013 Contents Commissioner’s Foreword v Acknowledgments vi 1 Introduction 1 Methodology 2 Definition of ‘domestic abuse’ 3 About this report Further information 4 2 International obligations: UNCRC and ECHR 5 2.1 United Nations Convention on the Rights of the Child 5 2.2 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 6 3 Legislative framework for disputed contact 8 3.1 Family actions: court orders in relation to parental responsibilities and rights 9 3.1.1 Best interests of the child in family actions 9 3.1.2 Views of the child in family actions 10 3.2 Children’s hearings proceedings: the current framework under the Children (Scotland) Act 1995 14 3.2.1 Best interests of the child in children’s hearings proceedings 14 3.2.2 Views of the child in children’s hearings proceedings 16 3.3 Children’s hearings proceedings: the future framework under the Children’s Hearings (Scotland) Act 2011 19 3.3.1 Best interests of the child in children’s hearings proceedings – the future 19 3.3.2 Views of the child in children’s hearings proceedings – the future 19 3.4 Adoption and permanence orders 22 3.4.1 Best interests of the child in adoption and permanence orders 22 3.4.2 Views of the child in adoption and permanence orders 23 3.5 Reports and background information: Children’s hearings and courts 25 3.6 Summing up 25 4 Analysis of reported court decisions on disputed contact 27 4.1 Best interests of the child in reported case decisions on disputed contact 27 4.1.1 Best interests of the child in family actions 27 4.1.2 Best interests of the child in children’s hearing proceedings 36 4.1.3 Best interests of the child in adoption and permanence orders 39 4.2 Views of the child in reported case decisions on disputed contact 44 4.2.1 Shields v Shields: the leading case on the question of ascertaining a child’s views 44 4.2.2 The age and maturity of the child 45 4.2.3 Weight to be attached to a child’s views 47 4.2.4 Subordination of the child’s view to the child’s welfare 51 4.2.5 Methods by which child’s views are communicated 52 4.2.6 Confidentiality in relation to the child’s views 60 4.3 Summing up 61 i 5 Consultation with Key Adults Stakeholders 62 5.1 Safeguarders: training and guidance on domestic abuse and contact 62 5.1.1 Current training for safeguarders 62 5.1.2 Changes to the management and operation of safeguarders 63 5.2 Children’s panel members: training and guidance on domestic abuse and contact 64 5.2.1 Current training 64 5.2.2 The term ‘intergenerational cycle of violence’ – a note 64 5.2.3 In-service training 65 5.3 Children’s Reporters: training and guidance on domestic abuse and contact 65 5.4 Social Workers: training and guidance on domestic abuse and contact 67 5.4.1 Pre-qualifying training for social workers 68 5.4.2 Post-qualifying training for social workers 69 5.4.3 Case study: Edinburgh City Council 70 5.5 Solicitors: training and guidance on domestic abuse and contact 70 5.6 Advocates: training and guidance on domestic abuse and contact 71 5.7 The judiciary: training and guidance on domestic abuse and contact 72 5.7.1 The Current Training 72 5.7.2 Manual for the judiciary: Equal Treatment Bench Book, 2008, 2nd Edition 73 5.8 Training and guidance on children’s rights 74 5.9 Inter-agency guidance and resources 77 5.10 Stakeholders’ views on disputed child contact where there is domestic abuse 79 5.10.1 Children’s views differing from their best interests 79 5.10.2 Confidentiality of children’s views 80 5.10.3 The effectiveness of mechanisms for children to express their view 80 5.11 Challenges in determining children’s best interests in contact where there is domestic abuse 81 5.12 Implications of introducing domestic abuse to grounds for referral to the children’s hearings 83 5.13 Other issues 84 5.14 Summary – consultation with key stakeholders 85 6 Key points and future action 87 6.1 Defining domestic abuse 87 6.2 Best interests, children’s views and domestic abuse when contact is disputed 88 6.3 Defining a child’s best interests when contact is disputed 90 6.4 Children’s views within contact proceedings 91 6.5 Future action 92 6.5.1 Work towards a common and evidenced definition of domestic abuse 92 6.5.2 Encourage sound information to inform practice and policy 93 6.5.3 Influence training and guidance on the impact of domestic abuse on children, and particularly on disputed contact 94 6.6 Final Comment 95 ii Appendix 1: Methodology 96 Appendix 2: Stakeholders consulted 98 Appendix 3: Interview schedule 99 Appendix 4a: Court forms requesting children’s views in family actions – Form F9 102 Appendix 4b: Court forms requesting children’s views in family actions – Form 49.8-N 105 Appendix 5: International child abduction cases 107 iii Commissioner’s Foreword I am pleased to introduce this report into child contact proceedings for children affected by domestic abuse. I hope it adds to our understanding of the issue, from the perspective of the children and young people caught up in the processes we have for dealing with domestic abuse. It also seeks to place the issue within the context of children’s rights. The report is derived from the results of a RIGHT blether – a national consultation involving 74,059 children and young people, indicating the issues on which they thought I should focus the work of my office. One of the results was that children and young people said they wanted help to be safe and secure in the home. My interpretation of this was that children and young people have a right to be free from abuse and neglect, and the area in which I chose to focus was that of domestic abuse. Further consultation with a wide range of professionals confirmed my view that contact arrangements for children and young people in situations of domestic abuse was the cause of great anxiety and variable practice – and worthy of closer examination. The context for the report is that since devolution in 1999, Scotland has given a consistently high priority to the issue of domestic abuse. This has increased greatly our understanding of the issue and how it plays out in the family dynamic. Recently, there has been a growing acknowledgement of the impact of domestic abuse on children and young people living with it and the requirement to respond to their needs. The result is a range of innovative responses to domestic abuse in Scotland. However, we are currently sitting on top of the highest ever number of police reported instances of domestic abuse since recording started. We know that this is a small proportion of all instances of domestic abuse because most instances go unreported. So, we have a very long way to go in tackling the issue of domestic abuse and in the meantime, very many children are caught up in the consequences of living with it. This report seeks to do two things. The first objective is to review legislation, regulations and guidance as well as considering the latest case law. The purpose of this was to gain an insight as to the processes whereby the perspective of the child is taken into account in decision making practices in court or tribunal settings. The second objective was to complement the review of decision making processes with insights provided by a range of professional stakeholders. The purpose of this was to develop a better understanding of how current processes actually worked and where improvements could usefully be made. I believe the combined elements of the report provide the reader with a very well informed view of the legal processes and some useful insights into how it actually operates. All of this activity has been prompted from the perspective of the child. The intention of the report is to provide a platform for improvements to be made and for indicating where there is a need for further study. I hope that you find the report informative and useful in developing an understanding of the issue of domestic abuse and how our court or tribunal systems take account of the perspective and rights of the children and young people involved Tam Baillie Scotland’s Commissioner for Children & Young People v Acknowledgments We would like to thank all those who advised the project and who agreed to participate. Centre for Research on Families and Relationships (CRFR) CRFR is a consortium research centre based at the University of Edinburgh. The Centre produces, stimulates and disseminates high quality social research and commentary on families and relationships. CRFR generates and builds on partnerships across and within the statutory, voluntary, private and academic sectors. http://www.crfr.ac.uk cl@n childlaw cl@n childlaw is an ambitious, exciting and unique outreach law centre, delivering free legal advice and representation to children and young people.