1 MAKING ARRANGEMENTS FOR CONTACT
1.1 In 2006, researchers at Newcastle University were commissioned by the Scottish Government to conduct a study investigating the nature and impact of court actions in Scotland in respect of contact with children. The study was carried out between 2007 and 2009, and this report details the background, methodology, findings and conclusions of that research.
1.2 All the research evidence points to the importance of children being able to develop and sustain a loving, stable relationship with both parents when their parents do not live together. Achieving this can be challenging for parents, particularly when their own couple relationship has broken down. The vast majority of parents are concerned to do the best for their children in these circumstances, but some, nevertheless, find it difficult to agree on arrangements for contact. If parents are unable to reach consensual agreements they may have to turn to the sheriff courts to resolve their disputes. Current Scottish legislation is aimed at putting children at the centre of decisions that affect them. Parents are encouraged to find acceptable solutions between themselves that support the welfare of their children, and to respect their children's views. This system has been in operation for some years and it is timely to conduct research that considers the ways in which courts in Scotland deal with contact disputes.
1.3 This study aimed to increase understanding of the Scottish sheriff court procedure for dealing with child contact cases, examining how it is perceived by legal professionals and how it meets the expectations of those who initiate court action. Little research had previously been conducted that examined child contact in sheriff courts, and a wide-ranging set of objectives was needed to address the gaps in knowledge that existed. The objectives were to examine:
- the number and type of contested contact cases in Scottish sheriff courts
- the characteristics of parents and children involved in contact disputes being resolved through court action
- the processes involved in court action in respect of child contact
- pursuers' reasons for undertaking court action, their previous attempts at resolution, their use of support services and the outcomes they desired
- the role of child welfare hearings ( CWHs) in relation to other court action
- whether the views of children and young people are considered by courts and parents, and if so in what way
Two early objectives were to explore variations in process for legally aided clients and to describe the costs of court action. Studying variations in process for legally aided clients proved difficult, as pursuers often expressed uncertainty as to their entitlement to legal aid, or were reluctant to divulge this information. Some exploratory work about costs was undertaken but is not reported here.
1.4 In this first chapter we outline:
- the relevant Scottish policy context
- existing research evidence relating to contact and parental conflict
- the use of courts to make arrangements for contact
- how children are involved in contact disputes
- key aspects of contact actions in Scotland
- key issues arising from this review
The first step in this exploration was to conduct a literature review which would serve as a backdrop to our examining the kinds of issues we sought to address in our research.
The policy context in Scotland
1.5 In order to understand the context in which child contact actions take place in Scotland, it is necessary to know how the current system for dealing with them has arisen. In this section we describe the current legislative and policy framework within which child contact actions take place.
1.6 The international trend over the last few decades towards increased rates of parental separation, divorce and single living is reflected in the profile of family life in Scotland, where the percentage of children living in one-parent households rose from 19 to 25 per cent between 1991 and 2001 (Morrison et al. 2004). During that time, legislation focused on ensuring parental responsibilities rather than entitlements. The Children (Scotland) Act 1995 stipulates the rights of parents to have a child live with them; to control, direct or guide their upbringing; to maintain 'personal relations and direct contact' with them if living apart; and to act as their legal representative. Section 1 of the 1995 Act makes anyone with parental rights in relation to a child responsible for safeguarding that child's health, development and welfare; providing them with age-appropriate direction and guidance; maintaining regular direct contact and personal relations if they do not live together; and acting as the child's legal representative. However, parental rights exist only 'to enable him [the parent] to fulfil his parental responsibilities in relation to his child' (s.2(1)); and the responsibilities are responsibilities only to the extent that compliance is practicable and in the child's interests (s.1(1)). Unlike the rights of 'guardianship, custody, and access' unmediated by their children's rights that were afforded to parents under the Law Reform (Parent and Child) (Scotland) Act 1986 (Norrie 1995), the rights and responsibilities of parents in Scotland are now subject to the paramountcy of the welfare of their children. An individual with parental rights who does not live with a child, for instance, has a responsibility to maintain their relationship with that child and a right to see them in order to do this, but only where this is practical and in the child's interests. The central principles of the Act in respect of court intervention relating to contact are that the court:
(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all; and
(b) taking account of the child's age and maturity, shall so far as practicable -
(i) give him an opportunity to indicate whether he wishes to express his views;
(ii) if he does so wish, give him an opportunity to express them; and
(iii) have regard to such views as he may express. (s.11(7))
In other words, the welfare of the child should be the primary consideration in decisions taken about that child, and children must have the opportunity to express their views to the court and have them considered. (Sutherland 2008).
1.7 Child Welfare Hearings ( CWHs) were introduced in fulfilment of the Children (Scotland) Act 1995 as a mechanism for dealing with any actions with implications for the welfare of a child or children. They were intended to resolve such disputes more quickly if this was consistent with children's welfare, and to avoid where possible the adversarial route of going to a proof hearing in these actions (Sutherland 2008). Unlike hearings in actions to resolve contact problems prior to the 1995 Act, CWHs are conducted in a closed court; parties, including any children wishing to attend, are required to be present at court unless they can show cause why this is not possible; and sheriffs have more extensive options for intervening. The CWH is intended to provide a focus on issues for any children involved in a case and as such may include discussion of how to access a child's views; this must be determined where a child has expressed a desire for their views to be heard. A sheriff may request to speak with the child individually in their chambers; they may order a report of designated scope from a reporter suggested or nominated during the hearing; or they may appoint a curator to represent a child in the action. If a contact crave is not controversial, the dispute may be settled at the CWH. Sheriffs in CWHs have a range of options at their disposal, including referral to mediation or other services, making an order in respect of contact or residence, making no order, and the setting of a further CWH or a proof. We discuss the characteristics of CWHs in more detail in chapter 4, and mechanisms for accessing the views of children in more detail in chapter 7. Courts are encouraged to make an order only in cases where it would be detrimental to a child's welfare for them not to do so, and they are increasingly applying Art. 9 of the UN Convention on the Rights of the Child ( UNCRC) in order to recognise the right of the child to have continuing contact with both parents (Sutherland 2008). 1
1.8 The principle of 'minimum intervention' suggests that parents should ideally make private arrangements between themselves for children to stay in contact with both of them following separation or divorce. During court action, sheriffs will only make an order if they see it as absolutely necessary to do so, and will seek to encourage negotiation and shared agreement between parties during a court case. Furthermore, section 24 (7D) of the Family Law (Scotland) Act 2006 amended the 1995 Act to the effect that, when deliberating whether to make an order that would require the co-operation of two or more relevant persons, the court 'should consider whether it would be appropriate to make an order' (Sutherland 2008).
1.9 Most separated families in Scotland agree contact arrangements between themselves. When parents live apart, they or other family members may initiate a court action relating to contact at any time while a child is growing up. Yet the number of court actions is relatively small. For example, during 2002, 1,138 ordinary causes concerning residence and/or contact disputes were initiated in Scottish courts (Scottish Executive Justice Department 2004) and a survey of contact arrangements in Scotland conducted in 2007 indicated that fewer than 3 per cent of separated families had used the courts to negotiate contact or residence arrangements ( MRUK 2007). A more recent panel study of pre-school age children growing up in Scotland found that among households where one biological parent was not resident, only 5 per cent of resident parents stated they had been to court regarding contact (Marryat et al. 2009).
1.10 While most separated families do not resort to court actions over contact, the 2006 Act extended automatic parental rights and responsibilities to unmarried fathers registered at the birth of any child from May 2006. At that time, fathers were known to be more likely to be non-resident than mothers (Morrison et al. 2004) and to initiate court action in respect of contact. In the vast majority (87%) of court actions in 2004 relating to child contact, the pursuer (the party who initiates the action) was a non-resident father (McGuckin and McGuckin 2004). The 2006 Act was expected to increase the number of men in Scotland with a legally defined paternal role towards children they did not live with (Dey and Wasoff 2006) but it was not clear at the time how this might affect rates of contact actions. Sutherland (2008, p427) notes that while the need for contact orders might be expected to diminish, the incidence of contact disputes and the desire to regulate them may prevail.
1.11 There may be a number of reasons why court action is not taken. In her study of parents in Scotland who had negotiated private separation agreements, Wasoff (2005) pointed to parents' desire to avoid the costs associated with going to court, and to their perceptions that court actions were likely to drag things out and be detrimental to their children or themselves. It is, therefore, likely that cases going to court represent the most embittered or entrenched parental disputes. Studies of parents undertaking court action in other jurisdictions in respect of contact have reported high levels of distress, domestic violence and mental health needs (McIntosh 2003). Trinder et al. (2008), for instance, report that among a sample of 155 resident and non-resident parents in England and Wales at the start of a court action over contact, the mean score was considerably higher than the community norm. In another study, Bream and Buchanan (2003) found that one parent expressed fear of the other in 78 per cent of families, while there had been physical violence between parents in 55 per cent of cases. In Scotland too, poor relationships between parents are widely reported by resident parents using the courts to resolve contact disputes. Marryat et al. (2009) state that among resident parents reporting a very bad relationship between themselves and the non-resident parent, 24 per cent had been to court over contact, compared with 1 per cent of those reporting a very good relationship. Given these findings, there is a need to examine more closely the motivations of pursuers to go to court. Exploring how they see their situation, and the challenges they face in resolving contact issues, is an important focus for research.
Parenting after separation
1.12 When parents go to court over contact with their children, each of them will have their own expectations about their own and the other's parenting role. These expectations have to be balanced with the responsibilities that the courts expect parents to exercise in order to promote their children's welfare. It is, therefore, important to recognise the key features of parenting after separation and how they may influence parties' experiences of court action. While the co-parental role envisaged in policy requires that both separated parents engage in family life in such a way as to support their child's general welfare, there is little elaboration of what that role might involve (Laing 2006; Wilson 2008). The prescription of co-operation in the 1995 Act, for instance, does not differentiate between the resident and the non-resident parent. Children simply spending more time with a non-resident parent, or seeing them more frequently, does not necessarily guarantee better outcomes for those children (Maccoby et al. 1993; Amato and Gilbreth 1999; Spruijt et al. 2004; Flouri 2006), or might have different effects depending on the child's age (Hawkins et al. 2007; Jackson et al. 2009).
Parental decisions about contact
1.13 Parents face a plethora of decisions in relation to how they put contact into practice after separation, contention around which may lie at the heart of disputes that are taken to court. They may find themselves caught up in moral dilemmas, in that they must choose between options, all of which may have something to commend them, on the basis of what they each judge to be right or wrong for their child (Finch 1989). The different choices that parents make when separating are shaped by the opportunities, constraints and responsibilities arising from the paths each has taken during their lifetime (Smart and Neale 1997; Elder 1998). In this sense, people are active in determining their own behaviour, but the reasoning behind any choice they make can be influenced by the support and the alternatives they have available to them, their experiences of making decisions, and their understanding of themselves and others. How parents think of themselves and of their identity as mothers or fathers after separation will also impact on the choices they make when trying to adapt their parenting to aspects of their daily life such as their employment or new intimate relationships (Neale and Smart 1999; McIntosh 2003; Laing 2006).
1.14 Arguments for the presumption of shared parenting or an equal distribution of contact time following divorce or separation have been criticised for ignoring how these transitions can destroy the child-rearing and breadwinning roles that were in place while the parents were living together (Smart 1997). Parental activity cannot continue as before since all the other adult roles pertaining to those of parenthood have changed, and equity in parenting is unworkable in the vast majority of families where it has not been the pre-divorce pattern (Walker et al. 2004). The expectation in law that separating parents should transform themselves into partners who co-operate in child-rearing means that they must be at their most selfless, doing whatever will impact least on their child whatever that implies for themselves, at the same time as trying to renew their identities and adjust to fundamentally distinct roles according to whether they are resident or non-resident (Smart and Neale 1999; Ahrons 2004). Faced with an array of different considerations and options occurring at difficult times in their lives, separated parents are likely to reach different conclusions about what is the right way to arrange contact, leading to disagreement and conflict.
Conflict between separated parents
1.15 The negative impact on children of conflict between separating or separated parents has been widely observed ( e.g. Whiteside and Becker 2000; Wild and Richards 2003; Rees et al 2010). The potential for children to be exposed to conflict in disputes over contact is an important consideration in a court case regarding contact, and is a central issue for our research.
1.16 A study of parents and children from 61 separated families in England developed a categorisation of co-operating and conflicted parents (Trinder et al. 2002). The authors observed, for example, that families in which co-parenting was most harmonious often represented a looser reconfiguration of the previous family structure, with family members enjoying regular contact and living near each other. Harmonious contact and co-operation between parents in other families in the sample, however, was maintained somewhat reluctantly, and some parents were separated by considerable geographical distances. Each of these harmonious configurations was seen to make huge demands of parents. Parents in reconfigured families, for example, were rarely in full-time employment and fewer of them had new partners, a finding which appears to contrast with those that link non-resident fathers' employment with a decreased rate or likelihood of contact (Simpson et al. 1995; Marryat et al. 2009). Conflicted families, on the other hand, were distinguished by the various stages or levels of conflict occurring within them. Although families in which conflict was routine and did not escalate to litigation appeared to fulfil many of the requirements of co-parenting, the presence of conflict was seen to cancel out the benefits of contact wherever it took place.
The nature and quality of the relationships and communication between all family members are key factors affecting children's outcomes in separated families in the US and England (Johnston et al. 1989; King 1994; Hoffman 1995; Burghes et al. 1997; Pruett and Pruett 1998; Whiteside 1998; King and Heard 1999; Whiteside and Becker 2000; Dunn and Deater-Deckard 2001; Ahrons 2004; Cowan et al. 2007), and conflict between parents has been shown to have a strongly negative impact on children's outcomes (Wild and Richards 2003; Rees et al. 2010). Since the relationships of separated parents in Scotland are likely to have a similar impact on their children's outcomes, it is therefore important to understand how they try to negotiate contact, and how family conflict emerges around contact.
1.17 Some authors criticise the tendency of both literature and legal procedure to treat conflict resolution as the equal responsibility of both parents in a 'conflicted family' in cases where one parent may be more responsible for generating conflict (Kelly 2003; Friedman 2004). It has been argued both that fathers are more likely to be seen as the source of conflict (because they are more likely to be the non-resident parent and the initiator of the court action) and that mothers are more likely to be cast as 'implacably hostile' or obstructive (because they are usually the resident parent and the defender in a case) (Kelly 2007; Wallbank 2007).
1.18 The contradictory views of parents in conflict can lead to divergent accounts of family life. These differing views can be a challenge to reaching consensus in court. For instance, significant discrepancies in the levels of involvement of fathers reported by parents who live together have been found to be positively associated with reported levels of conflict between these parents (Mikelson 2008), and studies of separated parental couples have shown that the levels of contact they report are inconsistent (Braver et al. 1991; Simpson et al. 1995). Separated and divorced parents have cited radically divergent choices or preferences in relation to contact ( e.g. going to court or not, or allocations of equal, differential or no contact time) on the basis of their children's welfare (Smart and Neale 1999; Kaganas and Day-Sclater 2004; Laing 2006; Wilson 2008). This may reflect the different solutions they see to the moral dilemmas of making arrangements for children following separation or divorce. In a Scottish court action in respect of contact, however, any contradictory views held by parents in conflict are set against the court's preference, implicit in the minimum intervention principle, for them to reach a consensual resolution between themselves rather than through a court order that may favour one or other party's case. If it is understood by parties that a court order is only likely to be forthcoming to ensure a child's welfare, the child's interests become a centrally contested issue (Mantle et al. 2007), and any assertion of the children's welfare or of the risk posed to it by another party inevitably contributes to the argument that is taking place:
Interests, like needs, are not a quality of the child; they are a matter of cultural interpretation which will certainly be context-specific and may well vary amongst various stakeholders who believe they have the wisdom to shape children's futures. (Woodhead 1997, p. 80)
1.19 It is important, given the perception that a responsible parent will put their child's interests ahead of their own, for any examination of how contact actions are argued in court to be alert to the possibility that statements of the child's best interests may represent a proxy for parental interests (James 2008; Smart 2004). Whether parental disagreements about children's needs are understood as the expression of distinct points of view or as discourse, they may represent a significant barrier to a process that aims to achieve agreed solutions to contact problems through a focus on what is best for the child.
Using the courts to make contact arrangements
1.20 The previous section explored how parents in conflict about contact have different perspectives on how that conflict arises and how it may be resolved. A small number of parents (and grandparents) in conflict decide to take court action in order to make arrangements for contact. This report is centrally concerned with these decisions and must, therefore, address how people experience the functions of the Scottish sheriff court. Research on the family courts in England is relevant here since there are parallels in the use of minimal intervention and the centrality of the welfare of the child (see e.g. Advisory Board on Family Law 2001). There are, however, significant challenges for the courts in upholding these principles. Making contact work over time involves repeated renegotiations, but using legal processes to resolve contact disputes can escalate hostility. For this reason, some commentators question the assumption that court-based processes can work to improve the well-being and functioning of families (Trinder and Kellett 2007; Singer 2009; Trinder et al. 2009). Parents who had been involved in English legal proceedings in respect of contact reported high levels of stress at the conclusion of the actions (Buchanan and Bream 2001; Bream and Buchanan 2003). Contact arrangements are subject to a wide range of internal and external influences such as proximity, working patterns, health, and financial situations (Walker et al. 2004), and what works in terms of contact for one family may be inappropriate or unmanageable for another. Neither can it be assumed that contact should always be legally enforceable as an optimum outcome (Eekelaar 2002).
1.21 Litigants' expectations of court action in England are often not met since the legal process does not address non-legal problems associated with disputes over children (James 2003). The research we report on builds on the findings of studies in England and seeks to establish why parents and grandparents in Scotland take court action over contact, what they expect to gain by it, and has invited them to reflect on whether they achieved this. The reasons given by parents in previous studies for starting court action are varied, and court action ostensibly about a child contact dispute can become enmeshed in complex arguments concerning finances and property, beliefs about parenting and responsibilities, new relationships, or blame for the previous relationship (Smart and May 2004). Wilson et al. found, in the discourse of Scottish non-resident fathers, a tension between a desire to see their arguments regarding contact vindicated in the courts and a belief that the courts were biased against fathers in general or were unlikely to effect change (Wilson et al. 2004).
1.22 One of the challenges for policy, then, is how to deal with the social implication of complex ethical and emotional conflicts between parents that may have a bearing on the legal issue of their contact dispute (Masson 2000). Few current court systems are equipped to manage these conflicts effectively, with the result that parents are often left dissatisfied with the purely legal remedies that are negotiated. The programme of reform in the Australian family law system in recent years has been a promising initiative in this respect, intended to allow courts to work collaboratively with parents to focus on outcomes that are practical and in the best interests of the child (Wasoff 2007; Smyth 2009). While evaluation of these new measures is ongoing, there is some evidence that an approach based on direct consultation with children and judicial management to minimise the negative impact of the dispute on family relationships has led to a reduction in self-reported acrimony and an increase in self-reported parental co-operation (McIntosh et al. 2008; McIntosh 2009). Scotland's court system incorporates a variety of mechanisms for consulting children and measures designed to minimise parental conflict and recrimination when negotiating a solution. In the next sections, we describe the current evidence base as regards involving children in making decisions about contact, which forms an important context for our later findings about how the Scottish court system operates in this regard.
Involving children in making contact arrangements
1.23 The UNCRC is intended to guarantee children their own rights and responsibilities, and Art. 12 of the Convention stipulates that their voices should be heard. Scottish Government policy outlined in the document Getting it Right for Every Child (Scottish Government 2008) places a central emphasis on children's participation in decisions affecting them. Sociologists and anthropologists have increasingly emphasised that children can and do act to influence their own lives, developing identities in response to their circumstances, but this capacity for individuality is often not acknowledged in adult systems, where children have a dependent status (Brannen 1999; Balen et al. 2006).
1.24 Contact disputes represent one context in which it is particularly important that children should have an active input (Cashmore and Parkinson 2008; Morrison 2009). Children aged between eight and fourteen may grasp the root causes of their parents' separation (Jennings and Howe 2001; Mantle and Critchley 2004), and children aged three to seven have displayed simple, accurate understandings of their parents' divorce and an awareness that their parents harbour negative feelings towards each other (Ebling et al. 2009). Yet parents may often be unaware of the young age at which children can understand and hold views on their separation. Among 107 children (mean age 13) of separated parents in New Zealand, only 37 per cent said they had been consulted about contact and 19 per cent about which parent they might live with (Smith et al. 2003). Most of those who had been consulted felt that their views had not been a major determining factor in these decisions and wished that they had been.
1.25 Children in Scotland whose parents were separating or divorcing have also indicated that they wanted some say in where they live and how they spend their time, but they did not want to be asked to choose between their parents (Mayes et al. 2003). In a recently conducted survey of child contact in Scotland, however, most parents living apart reported that they did not consult their children when deciding contact arrangements ( MRUK 2007). This suggests that Scottish parents involved in contact disputes may not be considering their children's views in the ways children wish. The research on which we report has gathered the views of both solicitors and parents undertaking court action in order to contribute to our understanding of why this may be the case.
Involving children in legal proceedings
1.26 Whether children have the opportunity to participate in court action is dependent on a number of factors. There are concerns that even where it is agreed that it is in a child's best interests that they be involved in court proceedings, implementing this may be problematic. The autonomy and flexibility of approach inherent in professional practice and processes mean that there may well be inequity, particularly as regards whether children know about the options available to them and are able to assert their rights (Tisdall et al. 2004; Sutherland 2008). Children's views, like children's best interests, may become a focus of contention; if they are not in accordance with one parent's wishes, that parent may understand, or be inclined to portray, the child as 'unreasonable' or may feel pressured to give a particular account of their views (Blank and Ney 2006; Cashmore and Parkinson 2008).
1.27 Scottish legislation, like much Scandinavian legislation, goes further than other UK legislation since it gives children the right to be party to proceedings about them if they are judged competent (Wasoff 2007). Mechanisms have been put in place for children to express their views to the court, and parents are legally required to consider their child's views. Nevertheless, these mechanisms are often operated on behalf of children by adults, who make decisions about children's competency. It can be difficult for children to express their views, particularly to someone with whom they interact for a very limited period, for a number of reasons. They may be afraid that they could be seen to be choosing between their parents, they may lack information and support, or they may feel relatively powerless and dependent on others (Mantle and Critchley 2004; Mantle et al. 2006).
1.28 Children may, under Scots law, secure their own legal representation in a court action, and children who have had their own solicitor have tended to feel that they had had a say in what had happened to them (Tisdall et al. 2004). Yet many children do not know how to secure the services of a solicitor, and are heavily dependent on parents and other adults as facilitators (Tisdall et al. 2004). Young people can find it difficult to talk in front of adults, and in front of both their separated parents. The physical layout and environment of the courtroom can prevent open discussion, and the skill of the adults involved can be crucial in engaging children (Murray and Hallet 2000). We will consider in this report how Scottish court procedure for contact actions takes account of such barriers to children's participation.
Contact actions in Scotland
1.29 Relatively little information is available about the population of parents in Scotland taking court action in respect of child contact, or about how their cases proceed through the courts. In this section, we examine the current evidence relating to Scottish contact actions.
1.30 A recent examination of sheriff court records in Dundee, Dumfries and Galloway, and in Glasgow, has provided some indicators of these characteristics. McGuckin and McGuckin (2004) estimated that around a third of parents taking action in respect of contact had been married, and that around half had previously cohabited. Eight per cent of actions were brought by grandparents. Four in five cases that came to court resulted in an agreement being reached. Legal aid had been awarded in 59 per cent of cases, and pursuers were more likely to have received legal aid than respondents (43% as against 21%). Most hearings (87%) took place as child welfare hearings ( CWHs), regarded as less adversarial and acrimonious than routine hearings in which members of the public may not be excluded and the sheriff's role is restricted. The CWHs were thought to offer a swifter resolution to contact. Although children should have had the opportunity to attend these hearings, few had actually done so. It was also found that most of the problems that had brought parents to court related to changes in family circumstances that had taken place some time after the initial separation or divorce. This is consistent with the observation, in a study of Scottish non-resident fathers, that conflict between separated parents arose in response to family change, depending on the individual parents' capacity to adapt their ideas about parenthood (Wilson et al. 2004). Finally, perceptions surrounding non-compliance with contact orders were central to the debate on the Family Law (Scotland) Bill through to its third reading. In the Scottish Child Contact Survey 2007 ( MRUK 2008) nine of the 14 parents who had been to court to negotiate contact arrangements said they had returned to court due to what they perceived as non-compliance with contact arrangements that had been agreed. Nevertheless, a recent examination of the views of sheriff clerks suggests that cases of non-compliance with court orders are relatively rare (Wasoff 2006).
1.31 In the absence of further literature detailing what takes place during and following hearings regarding child contact in the Scottish court system, this research aimed to enhance understanding about parents who go to court over contact, and to demonstrate how CWHs contribute to negotiated solutions and how child contact actions proceed towards agreed solutions.
1.32 From our review of the literature, a number of issues arise which are relevant to our study, as follows:
1. Scottish legislation for addressing disputes over child contact, is based on the prioritisation of children's general welfare, minimal intervention, and giving children a say in their situation. Little research has been undertaken on how this system operates or has changed since its introduction. An account of child contact cases in Scottish courts is therefore central to understanding the success of those policies. It also has the potential to inform policymakers and professionals in a wide range of jurisdictions.
2. Previous research evidence relating to Scottish families and the contact arrangements separated or divorced parents make between themselves suggests that those who go to court over contact represent a small and conflicted minority, about whom comparatively little is known. Establishing why they and their legal representatives decide on action that other parents may believe to be detrimental or unlikely to be effective - in the face, moreover, of a legislative preference for not making contact orders - would help us to understand how their expectations are likely to be met by the Scottish court system.
3. Reducing conflict and improving family relationships are significant objectives in improving outcomes for children whose parents separate or divorce. These are seen by many as potential benefits of a court system that puts children first. It is therefore important to understand how, and to what extent, Scottish courts facilitate agreed solutions and bring about a focus on children. The child welfare hearing is now the backbone of the Scottish system for processing contact actions; more than ten years after the introduction of these hearings, it is timely to consider how they function now, and what the views are of the individuals and professionals who experience them.
4. The Scottish legal system follows the UNCRC in seeking to secure the best interests of the child, but identifying children's best interests and views may present challenges. Court action over contact has been seen as a contested arena where statements of children's best interests can reflect subjective arguments or points of view. Examining the Scottish court system and the interaction of parties and professionals within it can shed light on how parties and professionals work towards establishing what is best for children, and on the ways in which parents' emotions and concerns for their children's welfare impact on these negotiations.
5. Children are seen as requiring and wanting the opportunity to express their views on contact disputes and have them taken into consideration. However, previous research suggests that there may still be considerable barriers to parents consulting them, and to their active involvement in the deliberations of the court. In this respect, it is important to identify how children's views are accessed and prioritised in Scottish contact cases, whether parents are aware of the necessity for this, and how sheriffs balance children's views with wider definitions of children's best interests.
6. The expectations of litigants undertaking actions in respect of contact are not always met, and concerns have been expressed about the sustainability of court-ordered arrangements. Describing how Scottish litigants think court action has enabled them to achieve their goals or has made an impact on their circumstances, and comparing their views with the perspectives of legal professionals, can illuminate how the Scottish court process contributes to the success of contact arrangements. A knowledge of how wider tensions in the separated family are lessened or resolved by going to court, and how agreements reached through the Scottish courts fare once a case leaves court, will help us to understand how the stability of separated families may be improved by reaching agreement in this way.
The structure of this report
1.33 The following chapters present research undertaken to address the issues identified above and inform policymakers and practitioners as to how and why Scottish actions in respect of child contact come to court and how they proceed, and about the impact that court action has on the families involved. Chapter 2 provides an overview of the research methods, as well as giving an account of the data gathered. In Chapters 3- 6 we present the findings of our research, structured according to the sequence of court action. Chapter 3 explores how pursuers make the decision to take court action. Chapter 4 focuses on CWHs, the main vehicle for contact actions in Scottish courts, taking into account the views of pursuers and legal professionals as well as observations of court hearings. Chapter 5 considers how court actions in respect of contact are brought towards a negotiated resolution while minimising conflict, and Chapter 6 details the outcomes of those actions and the effects on parents and children. In Chapter 7, we draw together the findings from across the study relating to how the views of children are gathered and balanced against considerations of their general welfare. Finally, Chapter 8 discusses the findings from the research and sets out our conclusions and recommendations.