Publication - Publication

Review of Children (Scotland) Act 1995 consultation: analysis

Published: 22 May 2019
Directorate:
Legal Services (Solicitor to the Scottish Government)
Part of:
Law and order
ISBN:
9781787818163

This report provides an analysis of the consultation responses from the consultation on the Review of the Children (Scotland) Act 1995.

209 page PDF

1.1 MB

209 page PDF

1.1 MB

Contents
Review of Children (Scotland) Act 1995 consultation: analysis
10 Domestic Abuse

209 page PDF

1.1 MB

10 Domestic Abuse

10.1.1 The main consultation document sought respondents’ views on a range of topics focused on protecting victims of domestic abuse and their children during court proceedings, including:

  • Banning of personal cross examination of victims of domestic abuse;
  • Protection of victims and vulnerable parties in child welfare hearings;
  • Protection of children from abuse or risk of abuse;
  • Preventing repeated litigation;
  • Ensuring the civil courts are provided with information on domestic abuse in actions under section 11 of the 1995 Act;
  • Promoting the use of domestic abuse risk assessments; and
  • Improving interaction between criminal and civil courts in the context of domestic abuse.

10.2 Personal Cross Examination of Domestic Abuse Victims

10.2.1 The Scottish Government consulted on banning personal cross examination of domestic abuse victims in contact and residence cases as there is evidence that this could be used to prolong domestic abuse.

Q32. Should personal cross examination of domestic abuse victims be banned in court cases concerning contact and residence?

Number Percentage
Yes 114 45%
No 49 19%
No response 91 36%
Total 254 100%

10.2.2 Nearly half (45%) of all respondents agreed that personal cross examination should be banned in such circumstances, while 19% said it should not.  A further 36% did not provide a response to the question.  It should be noted that only three organisations disagreed with banning personal cross examination, and the majority of the resistance to this proposal came from individuals.

Reasons for Supporting such a Ban

10.2.3 For those (both individuals and organisations) who supported banning the personal cross examination it was felt that this was important to protect the victims, who would find such an ordeal to be difficult, intimidating, place them at an emotional disadvantage, create further trauma, allow the perpetrator further control, and potentially subject the victim to further abuse: 

“For victims of domestic abuse, it would be particularly traumatic to be cross examined by their abuser. Abusive individuals may use subtle phrases, references and body language that has threatening meaning for the victim (but may be indiscernible by others).”  (Individual)

“Cross examination of domestic abuse victims perpetuates abuse and prevents survivors giving their best evidence... This process is potentially devastating and triggering to be questioned in an adversarial system by someone who has abused you. Again, it must be recognised that this process is commonly used by abusers as a means of perpetuating ongoing abuse. It is a place where power and control can be too easily acquired by abusers.”  (Domestic Abuse Support Organisation)

10.2.4 Some described their own personal situations and the impact that the stress and trauma had had on them and their children.  Even just being in the same building/court room was seen to be highly distressing and potentially dangerous.  As such, several individuals and organisations suggested that suitable safeguards and the use of special measures/reasonable adjustments were needed to allow victims to provide their evidence, such as via a report, a recorded interview, or video link from another building and not being able to see/hear the perpetrator.   

10.2.5 Many organisations and several individuals suggested that automatic legal aid/provision would need to be made available to allow the (alleged) victims of domestic abuse to be cross examined by a professional rather than the (alleged) perpetrator.  Similarly, one domestic abuse support organisation suggested that similar provisions were needed to ensure that self-representing victims were not placed in a position to have to personally cross examine their abuser:

“The result may be a small increase in the cost of legal aid so that a solicitor can conduct cross examination in place of a self-represented litigant but, if that is the price of improving protection of abuse victims and their children from continuing persecution by their abusers, it is a price worth paying.”  (Individual)

“…similar to the provisions under the Criminal Procedure (Scotland) Act 1995, the state would incur the cost of providing a lawyer to carry out the cross examination and the necessary preparatory work but this is a worthwhile cost when considering that this will lessen the trauma experienced by women and the resultant impact of that on their evidence.”  (Domestic Abuse Support Organisation)

10.2.6 Two organisations also highlighted the need for greater recognition that men can be victims of domestic abuse, and that, due to social norms, there is a risk that female perpetrators could ‘turn the tables’ and falsely accuse their male victims and/or that men may be arrested for having defended themselves.

10.2.7 In addition, many organisations (and a few individuals) also suggested that, as this was the process for criminal proceedings, it was sensible/important to extend this to civil cases as well.  It was felt that this would align criminal and civil law.  One organisation also suggested that the process must dovetail with Scotland’s domestic abuse legislation, and therefore needed to also cover psychological abuse and controlling behaviour.  Another suggested such a ban should also be implemented in cases involving sexual offences, child abuse or stalking.  It was also suggested by one organisation that such a ban would be in keeping with the spirit intended by the Victims and Witnesses (Scotland) Act 2014, and consistent with proposals in the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.    

10.2.8 There were mixed views among individuals, however, around the circumstances when such a ban should apply.  Some felt this should only apply when domestic abuse has been proven and either a criminal conviction or civil protection order is in place, while others felt that it was important in any case where domestic abuse has been alleged (proven or otherwise).  A few organisations also sought further details/clarity over the definition of ‘a victim’ and around the circumstances when such a ban would be implemented, as well as in relation to how and when costs would be met and/or when legal aid would apply/be stopped.

Reasons Not to Ban Personal Cross Examination

10.2.9 Those individuals who were unsupportive of the proposal typically indicated that false or exaggerated allegations can be made, with several suggesting this happens frequently and others recounting their own experience of this.  It was suggested that claims of domestic abuse needed to be fully explored and the truth established before any judgement could be made regarding the situation and possible risk to the child.

10.2.10 Several felt that it would depend on the circumstances and care was needed in the case of false allegations being made by one party to punish the other and/or to further their own interests.  It was suggested that such a ruling could risk alleged victims taking advantage of the system:

“Where the claims are hearsay and haven't been proven I don't agree. Some women claim domestic abuse to punish their partner in separation cases. This allows them to exploit social services, legal aid and councils and further allows for the alienation of their children.”  (Individual)

10.2.11 Three individuals highlighted that such a ruling would make it very difficult for party litigants to conduct their case properly.  A few also felt that personal cross examination could proceed as long as this was conducted responsibly and the judge closely monitored and intervened where necessary.        

10.2.12 Two organisations agreed that such a ban should only occur in proven cases of domestic abuse, while the third again highlighted the difficulties posed to party litigants and suggested that, in order to balance protection for victims of domestic abuse and the need for a fair hearing, this would result in the need for the court to provide representation and for this to paid for from public funds.

10.2.13 Two respondents (one individual and one organisation) also felt that the arrangements for vulnerable witnesses afforded from the Vulnerable Witnesses (Scotland) Act 2014 should provide sufficient protection in most cases.

10.2.14 Regardless of respondents’ perceptions in relation to the personal cross examination of adults, several respondents suggested that protections should be extended to children and that special measures were needed to allow them to provide evidence, with a few suggesting that children should be kept out of court proceedings wherever possible.

10.3 Protection of Victims and Vulnerable Parties in Child Welfare Hearings

10.3.1 The consultation document specified that Child Welfare Hearings are designed to be informal hearings.  However, the Scottish Government indicated that they had received representations and concerns about negative experiences of domestic abuse victims attending court.

10.3.2 Views were sought on whether section 11 of the 1995 Act should be amended to provide that the court can, if it sees fit, give directions to protect domestic abuse victims and other vulnerable parties at any hearings.  The consultation referred to this, building on work done by the Family Law Committee of the Scottish Civil Justice Council in relation to case management.  This included proposals for a fast track process.

Q33. Should section 11 of the 1995 Act be amended to provide that the court can, if it sees fit, give directions to protect domestic abuse victims and other vulnerable parties at any hearings heard as a result of an application under section 11?

Number Percentage
Yes 131 51%
No 27 11%
No response 96 38%
Total 254 100%

10.3.3 Around half of all respondents (51%) agreed that the court should have such discretion, while 11% said it should not.  The remaining 38% provided no response.  Of the nine organisations who disagreed with such a change, five were from the legal profession.  

Support for the Court Giving Directions to Protect Vulnerable Parties in Cases under Section 11 of the 1995 Act

10.3.4 For those who agreed with the proposed change, most felt it was important that victims of domestic abuse were suitably protected and that they should not have to be in the same room as their abusers.  It was suggested that the proposal would also assist the court in obtaining greater quality and accuracy of information, resulting in the best decisions for the child: 

“This type of behaviour has to be stopped.  Any vulnerable person, child or adult, must be protected.”  (Family Support Organisation)

“Any changes which can minimise the trauma for a party appearing at the child welfare hearing should benefit the quality and accuracy of information being supplied to the court by the parties and ultimately lead to better decisions in the welfare interests of the child.”  (Local Authority)

10.3.5 It was suggested that the proposed amendment would be suitable to protect victims of domestic abuse and those with learning disabilities.  One organisation suggested that, in the options of special measures available, advocacy support should be included to best assist those with learning disabilities, and that parties should be allowed to determine the special measures they wish to use rather than having this imposed on them.

Perceived Difficulties with the Fast Track Process Proposed by the Family Law Committee of the Scottish Civil Justice Council

10.3.6 One local authority felt that it may be difficult in practice to determine at an initial triage hearing which cases would require the proof track and which would suit the fast track.  They noted that, often a series of Welfare Hearings are required to determine the level of conflict and complexity involved.

10.3.7 One domestic abuse support organisation also suggested that the nature of the triage hearing did not take domestic abuse into account.  There would still be a requirement for both parties to be present and a risk that domestic abuse may not be disclosed at that hearing, meaning that no protections would be provided and the abuse would not be investigated/considered in the outcome.

Need for a Standardised Approach

10.3.8 Some organisations suggested that the proposed wording was not bold enough and would not provide a consistent response to vulnerable parties/children.  One individual also felt that the wording ‘that the court can, if it sees fit’ was too vague and inappropriate, potentially creating a ‘loop-hole’ and allowing judges to be less accountable:

“…the provision of this protection will be entirely at the discretion of the court. Discretion will not ensure a consistent response and protection for vulnerable witnesses and women experiencing domestic abuse. It is predicated on the court understanding the dynamics of domestic abuse and, being aware that this is an issue in the case before them.”  (Domestic Abuse Support Organisation)

“…it is a loop-hole for an abuse of process, removes parity and constructs discrimination as proxy procedure and makes Sheriffs more unaccountable.”  (Individual)

10.3.9 Similarly, the knowledge and understanding of the judge regarding the dynamics within domestic abuse was felt to vary currently.  It was suggested that some Sheriffs can be dismissive of allegations of domestic abuse, and that some victims of domestic abuse have had requests for special measures refused.  It was also suggested that some victims are frightened not to attend hearings in case they are seen to be trying to manipulate the outcome or they miss and cannot challenge information provided to the court by the perpetrator:

“We have been told by victims of domestic abuse that Sheriffs have also been dismissive of allegations of domestic abuse when they have tried to disclose in court…  We also have experience of clients who have requested screens. When refused, the reasons given seem to be about the court process being civil rather than criminal rather than about gaining best evidence to ensure the best interests of the child are served or indeed the safety of the participants.”  (Domestic Abuse Support Organisation)

10.3.10 Therefore, it was suggested by organisations that the court should have a duty to both enquire about the need for special measures and for protection of children and victims of domestic abuse to be an automatic right (rather than for it to be at their discretion).  This was considered to be more in line with the changes to the criminal setting:

“We would similarly urge this consultation to go further and propose a mandatory duty on family courts to consider special measures in all cases involving domestic abuse, in line with the direction of wider reform.”  (Children’s Organisation)

10.3.11 Again, it was highlighted that judges would be required to be live to the possibility of a male victim and it was stressed that this was not just an issue for women.

Concerns about the Court Issuing Directions

10.3.12 One individual suggested that the proposal would still require the party or their solicitor to disclose domestic abuse and request protections be put in place.  They felt this represented an additional barrier for victims who could be influenced by the advice of their solicitor.  Indeed, domestic abuse support organisations identified that some solicitors would not disclose domestic abuse evidence or would advise clients against such disclosure, and one individual outlined personal experience of being advised by their own solicitors not to disclose domestic abuse:

“…it will be up to the parties (or their representatives) to request protection of domestic abuse victims. This represents an additional hurdle for litigants as they are dependent on having a legal representative who is both alive to, and proactive in respect of, a history of domestic abuse.”  (Individual)

“My solicitor has advised me not to disclose these matters as 'they will likely be used against me'.”  (Individual)

10.3.13 Therefore, it was suggested that a better solution may be to provide separate waiting areas (with facilities) and stagger leaving times as standard in all family actions.  Further guidance/direction and better training for solicitors and judges in domestic abuse, coercive control and trauma was again cited as necessary.

10.3.14 Those individuals who were against such a change typically felt that there were too many false and malicious allegations of domestic abuse and that the ‘alleged perpetrator’ should be treated as innocent until proven guilty.  Such a change was perceived to allow ‘alleged victims’ to control the situation and influence the outcome/how the judge perceives both parties.

10.3.15 Likewise, some individuals who were generally supportive of such protections, caveated their support by highlighting that some parties may falsely accuse the other person in order to strengthen their case/weaken the other party’s case, and delay/stop contact.  It was felt that courts needed to be mindful of this possibility, with some suggesting that such adaptions/protections should only be put in place where the abuse has been proven/a criminal conviction is in place:

“Domestic abuse should not be mentioned unless there is a proven charge. Alleged domestic abuse should not be given any weight as it is often used as ploy to break or disrupt contact or "win" residency by fleeing the alleged perpetrator.”  (Individual)

10.3.16 Some organisations and a few individuals also felt that the current arrangements worked well and that suitable protections were already available.  Five organisations suggested that if additional protections were required then this should be dealt with via court rules, guidance, or a practice note and that changes to primary legislation were unnecessary/inappropriate.  A few also felt that the number of cases where special measures/non-attendance at welfare hearings are sought was not high enough to warrant a change to the Act. Again, however, domestic abuse support organisations were concerned at the low number of requests not to attend hearings and suggested this may be because solicitors are not aware of the provision or are not making their clients aware of this, or due to a fear of how this may be interpreted by the court and the inability to then challenge information provided by the other party.

10.3.17 One individual who was generally supportive of the measures also suggested that section 11 probably enabled such actions already, however, they felt that adding an express statement to highlight this and direct judges would still be helpful.

Additional Concerns/Suggestions

10.3.18 One domestic abuse support organisation felt that the proposed change did not go far enough, but rather the protections afforded to vulnerable witnesses in criminal proceedings should be transposed fully to the civil court setting.  Indeed, they highlighted that both criminal cases and residence/contact cases could be running in parallel but that the victim of domestic abuse would have differing levels of protection in each setting.

10.3.19 They also highlighted that access to justice and securing protection as vulnerable witnesses can be a particular issue for black and minority ethnic women and children.  Specific issues in relation to child contact proceedings seen to include:

  • A lack of information around rights and the process, as well as a desire for more information to be available for people representing themselves (and their children), and information about how historical court orders can be challenged;
  • A feeling that they have “slipped through the cracks” and concerns about having to go to court with no support, and not having a safe place to wait;
  • A lack of confidence in the process and feeling “bullied”, that statutory agencies had a lot of power and that the interplay between immigration law in the family court system was negative - there was a need for greater opportunities to provide their opinions to the Sheriff, it was suggested;
  • The necessity of an adequate interpreter service and a lack of confidentiality around interpreters;
  • Language was a barrier - reports are all written in English and translation was considered to be of poor quality; and
  • More support was needed for women where there is an absence of settled immigration status since they are especially vulnerable to misuse of the court process by abusive partners.

10.4 List of Matters that a Court shall have Regard to

10.4.1 Sub-sections (7A) to (7E) of section 11 of the 1995 Act provides a list of matters that a court shall have regard to when considering the welfare of a child, which includes the need to protect the child from any abuse or risk of abuse.  The Scottish Government sought views, therefore, on whether to keep, amend or remove sub-sections (7A) to (7E) of section 11 of the 1995 Act.

Q34. Should subsections (7A)-(7E) of section 11 of the 1995 Act containing a list of matters that a court shall have regard to be kept?

Number Percentage
Yes - retain as currently 78 31%
Yes - but amend 33 13%
No - remove these provisions 34 13%
No response 109 43%
Total 254 100%

10.4.2 Almost a third of respondents (31%) suggested that sub-sections (7A) to (7E) should be retained as they are currently, 13% felt they should be amended, and 13% felt the provisions should be removed.  The remaining 43% did not provide a response.

Retaining the Provisions

10.4.3 It was suggested that the provisions were appropriate and have proved effective where they have been implemented.  Further, several respondents felt that the frequency with which domestic abuse featured in residency and contact cases (whether declared or not) meant that they were necessary.  A few individuals and organisations suggested it was helpful to retain the sub-sections as this provided a prompt to the court and drew attention to a potential difficulty for the child, with others indicating it was an important step in considering the safety of a child and protecting them from abusers.  Several organisations suggested that the rationale for removing the sub-sections was unclear or felt that removal was unnecessary:

“The subsections are considered to be a powerful tool to protect victims of domestic abuse therefore should be retained.”  (Local Authority)

10.4.4 Again, it was suggested that training may not currently be sufficient enough to ensure that all practitioners understand the potential for continued abuse/coercive control through hearings/contact, or to understand the distress caused to a child by witnessing, hearing, and living with, domestic abuse.  Three domestic abuse support services and one children’s organisation again highlighted that some of their clients had been unhappy with advice from solicitors not to disclose domestic abuse in court.  Therefore, it was felt that the current provisions needed to be highlighted as a crucial part of the decision-making process:

“We have also known solicitors advise women not to raise any issues about domestic abuse in the court process as the solicitor’s view is that the court will hold this against the woman.  We also have experience of solicitors not providing information on a long history of domestic abuse as they did not see the relevance of this to the child’s wellbeing.”  (Children’s Organisation)

“…we are regularly told by domestic abuse victims that their solicitors say not to mention domestic abuse as 'the sheriff won't like it' or 'this action is about the child not you'. We have been told by victims of domestic abuse that sheriffs have also been dismissive of allegations of domestic abuse. It was hoped the additions to the 1995 Act would stop that practice, but we have seen no evidence of this. Therefore these provisions should be highlighted as a crucial part of the decision-making process.”  (Domestic Abuse Support Service) 

10.4.5 One individual and two domestic abuse support organisations also suggested that the lack of evidence regarding their impacts may be due to courts not implementing the provisions when required, with some organisations (largely domestic abuse support organisations and local authorities) suggesting that sub-sections (7A) to (7E) were positive and could be a powerful tool in protecting women and children at risk of domestic abuse if properly implemented.  Rather, it was suggested the sub-sections needed to be strengthened and used more frequently rather than removed.

10.4.6 It was also suggested by one individual and one domestic abuse support organisation that the removal of sub-sections (7A) to (7E) would be a regressive step and could be interpreted that domestic abuse is no longer a priority:

“To remove these provisions would risk sending out a message that domestic abuse is no longer a priority, or that it is not of primary relevance to the present and future wellbeing of a child.”  (Individual)

Amended Provisions

10.4.7 While 34 respondents indicated that there was a need for amended provisions, very few detailed any specific amendments they considered necessary/helpful.  Some respondents stressed the need to retain the provisions (in general) due to their importance in residence and contact cases.

10.4.8 The main areas highlighted for further consideration by more than one respondent were in respect to sub-sections (7D) and (7E), and to clarify that the checklist is not an exhaustive/comprehensive list of all welfare issues to be considered.

10.4.9 Two respondents felt that sub-sections (7D) and (7E) should be removed (or at least given further consideration), while another felt that sub-section (7D) alone should be removed.  It was felt these sub-sections were ill-conceived.  One respondent suggested that section (7D) could be interpreted to reward a person who refuses to co-operate and it was felt that non-co-operation should be dealt with by other means.  Another suggested it could create a link between (a) domestic abuse cases, where there are genuine fears about safety, and (b) those cases in which residential parents decided not to co-operate in order to frustrate either a contact order being made or contact taking place.  One respondent felt that further consideration needed to be given to sub-sections (7D) and (7E) in light of provisions discussed elsewhere in the consultation, and that the growing understanding and impact of coercive control should be defined within the legislation.  Conversely, however, one respondent felt that sub-section (7D) was the most helpful because the practicalities of contact have to be considered along with the principles.

10.4.10 Four respondents also discussed the need to ensure that it was clear that the checklist did not intend to provide a comprehensive list.  One respondent suggested that a complete checklist should perhaps be included, while another suggested that further discussion, consideration and presentation of evidence may be required around whether it is beneficial to provide a non-hierarchical ‘list of matters’ to be considered in assessing a child’s best interests.  It was suggested that such a list could include the child’s view; care protection and safety of the child; the child’s right to health/education, etc.

10.4.11 Other specific suggestions that were provided by one respondent each included:

  • Amend to deter incentive for conflict in order to reduce parents taking advantage for their own gain;
  • Make it compulsory not considered - it was felt that when parties introduce evidence of domestic abuse at a later point in the case that judges do not always consider the evidence;
  • Be more explicit in relation to how a child could be made safer;
  • To cover and include Getting it Right for Every Child (GIRFEC),  the SHANARRI factors[6], and Adverse Childhood Experiences (ACEs);
  • Inclusion of any ongoing need to provide further protections to an adult party in the proceedings (in certain specified circumstances); and
  • Consider specialist risk assessments being undertaken to determine safety issues and to enable a fully informed parenting plan to be decided.

10.4.12 Several individuals also, again, outlined the need to be cognisant of the risk of false allegations, with a few suggesting this should reflect the need for domestic abuse to have been corroborated, proven and/or for criminal convictions to be in place.  One individual also suggested an amendment that if allegations regarding domestic abuse are found to be false that this will harm the integrity of the witness and their fitness to bring up children will be questioned.  Two domestic abuse support services and one LGBT organisation, however, indicated that such false allegations occur infrequently and should not, therefore, be used as a reason to remove safeguards:

“such references [to false allegations] perpetuate a dangerous culture of disbelief that discourages victims from disclosing their experiences, that punishes women for trying to protect themselves and their children, and that privileges the interests of perpetrators.”  (Domestic Abuse Support Service)

Reasons for Removal

10.4.13 Again, some individuals highlighted the risk of false allegations and one parent using this to control the situation or contact, or as a tool in parental alienation.

10.4.14 One individual suggested that, given the lack of evidence around the impact, these provisions should be removed and consideration should be given to other ways to provide guidance.  A few individuals felt that such a ‘checklist’ should not be provided (or if retained then full welfare checklist was required), but rather the court/judge should have the discretion take full account of any/all welfare issues, without elevating the importance of one issue over another.  It was felt that having such a list may mean that it is more likely that domestic abuse will be alleged as parties know it will have to be specifically considered, while the scope for other issues to be investigated may be limited due to not appearing on the list:

“Any domestic abuse would have to be considered in determining what is in the best interests of the child, and it should not be afforded an elevated status as against other important factors.”  (Individual)

10.4.15 Similarly, organisations agreed that the current provisions may lead to increased conflict and the risk of false allegations being made, while adding little in relation to the child’s welfare or best interests.  They also felt that the court would always consider allegations of abuse, along with any other welfare issue that may be of relevance in a case, and agreed that making specific provisions may elevate domestic abuse ahead of other legitimate welfare concerns/factors.  It may also risk the court missing an essential factor, and risks deflection from the paramountcy of the child’s best interests.  Rather it was felt that each case should be dealt with on its own merits.

10.5 Requiring Court Permission to Bring Further Applications

10.5.1 Views were sought as to whether similar provisions should be made in Scotland as is currently the case in England and Wales, where section 91(14) of the Children Act 1989 provides that: “On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.”

Q35. Should section 11 of the 1995 Act be amended to lay down that no further application under section 11 in respect of the child concerned may be made without leave of the court?

Number Percentage
Yes 72 28%
No 55 22%
No response 127 50%
Total 254 100%

10.5.2 Half (50%) of the respondents did not provide a response to this question, while 28% were in favour of such an amendment and 22% were against it.  Both those who were supportive and non-supportive contained a mix of individuals and organisations.

Support for the Amendment

10.5.3 Individuals and organisations who were in support of the need for further applications felt this would support the court in proactive case management. It would give them the opportunity to decide if there has been a change in circumstances (with any behaviour addressed) and whether to allow the case to be returned to court, thus reducing the levels of unnecessary litigation.  Similarly, organisations suggested the change would assist courts in ‘weeding out’ inappropriate cases and those where an abusive partner is using repeated litigation as a means of perpetuating abuse.  As such, it was felt that this may help to protect both adult victims of domestic abuse and children from repeated litigation (and the uncertainty it brings) and the risk of prolonged abuse through court actions:

“This would go to minimise cases of various family members making section 11 applications and children being subjected to numerous legal proceedings and would minimise unnecessary use of court time, reduce the uncertainty for the child and restrict the use of the legal process as a tool by an abuser to cause unease, distress or psychological harm to the other party to the relationship.” (Local Authority)

10.5.4 Two respondents (one individual and one organisation) felt that leave should be required if an application is brought within a fixed time period following a final order (the suggestion from one respondent was within 18 months).

10.5.5 One individual felt that greater training was required in the paramountcy principle, and felt that both parents should be present in court to allow for further evidence.  Two others stressed the importance of the child’s voice being heard where they are driving the requests to change arrangements.

Do Not Require Leave of the Court

10.5.6 For those who did not support the proposed amendment, individuals and organisations highlighted that circumstances could change, thus providing genuine justification for further court applications.  It was suggested that such a change could make it difficult to enforce orders and to seek special orders for holidays, etc. and that it may introduce delays into the system:

“Children's lives do change, sometimes very quickly, which genuinely does justify a further section 11 application.  A requirement to seek leave adds an extra level of complexity in a situation where the better policy is to keep things as simply as possible.”  (Individual)

“[We] are concerned with the delay that may be caused if a party has to seek leave of the court before making a further application under section 11.  Such delay may not be in the best interests of the child in certain cases.”  (Legal Profession)

10.5.7 Several organisations and a few individuals also felt there was a lack of evidence highlighting any problems in this respect, and suggested that the current system was sufficient.  A number of existing measures were considered to tackle this issue already, including the need for there to be a material change in circumstance following a final order and the use of the ‘No Order’ principle.  Similarly, the use of interlocutors so that parties cannot revert to court about a particular issue and the Scottish Legal Aid Board’s tests for ‘chances of success’ both helped.  The courts’ ability to award expenses to a single party, and that the law already allows courts to determine someone a vexatious litigant were also cited.

10.5.8 One family support organisation and one individual suggested that such an amendment may be appropriate in cases involving domestic abuse, but that wider application should be avoided.  However, three domestic abuse support services also highlighted that while the current wording could mean that victims of domestic abuse could be protected against repeatedly being taken to court by the perpetrator, it could also prevent victims from challenging harmful contact orders.  Indeed, it was highlighted that often the impetus to challenge orders comes from the children who do not want contact.  As such, it was felt that a more nuanced approach may be required.  

10.5.9 While generally against the concept of requiring leave of the court, (as it was considered disproportionate and burdensome) several respondents did outline alternative suggestions which were considered more appropriate.  These included:

  • Further investigation behind repeated applications;
  • Better records of previous behaviours and time wasting/repetitiveness;
  • Full and proper information at the outset to reduce repeated applications.
  • Providing the judiciary with discretion to order in a particular case that leave is required for any future application;
  • Proactive case management to deal with continual changes being sought to interim orders during a series of Child Welfare Hearings;
  • The court considering whether the Children’s Hearings System is a better forum for discussing the child’s needs and involving local authority social work departments in developing a plan;
  • A possible sanction in expenses for unmeritorious applications to act as a deterrent;
  • Introducing terms similar to section 91 of the Children Act 1989, or section 159 of the Children's Hearings (Scotland) Act 2011 which deals with vexatious and frivolous litigation (such suggestions were made by several respondents both in favour and against the proposed change); and
  • Trialling Parenting Co-ordinators which was considered to have potential to prevent repeated litigation, particularly in connection with ongoing arrangements such as pick-up times and holidays.

10.6 Access to Relevant Criminal Convictions for Civil Courts

10.6.1 The consultation sought views on what more, if anything, should be done to ensure the civil courts have information on domestic abuse when considering a case under section 11 of the 1995 Act.

Q36. Should action be taken to ensure the civil courts have information on domestic abuse when considering a case under section 11 of the 1995 Act?

Number Percentage
Yes 127 50%
No 17 7%
No response 110 43%
Total 254 100%

10.6.2 Half of all respondents felt that action should be taken, while only 7% did not.  The remaining 43% did not provide a response.  Both those who agreed and those who disagreed comprised a mix of individuals and organisations.

Reasons No Action Necessary

10.6.3 Those who disagreed with the need for additional actions typically felt that the current system already allows for domestic abuse to be raised as an issue, and that it was unnecessary/unhelpful to raise the spectre of domestic abuse in every case.  A few also suggested that no one welfare issue should be singled out, rather the court should take a holistic view.

10.6.4 Again, several individuals suggested that such actions could support false accusers and lead to the investigation of innocent parties.  Rather, it was felt that domestic abuse was a crime that should be proven in criminal courts.

10.6.5 A range of other reasons (outlined by just one respondent each) included: that there is inadequate evidence to show there is a problem with the current system; that it was important for the court to be able to distinguish between allegations and evidence due to the level of false allegations made in section 11 cases; and that issues of domestic abuse should only be raised if it has been proven and was against the child.

Support for Possible Actions

10.6.6 Respondents were also asked to identify support for a range of possible actions that could be taken (with the results detailed in the table below).  Similar levels of support were provided for each option, with only 11 percentage points separating the specified actions, i.e. ranging from 59% who supported the introduction of a duty in legislation on the civil courts to establish if there has been domestic abuse, and 48% who supported discussing with the Law Society of Scotland and the Family Law Association whether guidance for practitioners would be helpful.

Number Percentage
Introducing a duty in legislation on the civil courts to establish if there has been domestic abuse 85 59%
Placing a duty in legislation on child welfare reporters that they must consider in each case whether there is evidence of domestic abuse and, if so, report on it accordingly 79 55%
Including domestic abuse in any welfare checklist for the courts to consider in section 11 cases 79 55%
Discussing with the Law Society of Scotland and the Family Law Association whether guidance for practitioners would be helpful 69 48%
Other 19 13%
Total Respondents 143*

* Note: Multiple responses were possible at this question.

Note: 16 respondents who stated ‘no’ or gave ‘no response’ at the first part of the question went on to identify at least one option above.

Reasons for Support

10.6.7 Those who supported the need for further actions to be taken felt that it was important to identify if domestic abuse was an issue due to the serious impact this has on a child’s welfare, and to identify whether suitable protections are required for the victim/child during any hearings.  Implementing duties and a checklist were considered to assist in providing consistency in approach across the country.  It was considered important by some to ensure that domestic abuse is considered, even where there are no criminal proceedings/convictions.

10.6.8 Domestic abuse support services suggested that domestic abuse is a factor in most child protection referrals to social work, while one children’s organisation indicated that domestic abuse is one of the most common welfare concerns in disputed residence and contact cases in Scotland.

10.6.9 It was also suggested by eight respondents (including two individuals, two domestic abuse support services, two children’s organisation, one legal professional, and one local authority) that placing a duty on the court or compelling them to be more pro-active in considering domestic abuse would assist victims who may otherwise face barriers or pressure not to disclose.  It was felt this would address a current gap in the system and would assist the court in ensuring it obtained as much information as possible to inform decision making: 

“Although it is reasonable to expect that the woman’s solicitor should, as a matter of course, provide all the relevant information, given the problems women encounter in having domestic abuse raised and discussed, there is considerable merit in having the court ensure that it has all the information required.”  (Domestic Abuse Support Service)

“Parties and agents will normally make the court aware of any domestic abuse issues. However, the difficulties which often occur in respect of disclosure of such issues, (such as fear of further abuse), or lack of awareness by victims or agents that certain behaviours are domestic abuse, mean that some instances may not be brought to the court’s attention.”  (Legal Profession)

10.6.10 It was also suggested by a few organisations that work was required to address the ‘patriarchal’ nature of the legal system and challenge the perceived scepticism among some professionals about the existence of abuse and victim-blaming mentalities.

10.6.11 For those in favour of some additional actions being taken, but who were against the introduction of a specific duty being imposed on the court, it was generally felt that the existing structure (i.e. solicitors/party litigants raising issues of abuse and the court investigating the allegations) was sufficient, and/or it was feared that introducing a duty for one specific welfare concern could create a hierarchy for risk factors.  A few also felt that duties (for the civil court) in relation to establishing domestic abuse may be onerous and could detract from the focus on a child and their best interest.

10.6.12 A few respondents, who were either largely in favour of additional actions being taken or who were undecided, felt that greater clarity was required in several key areas, including:

  • Whether routine enquiries would be introduced and what might these entail?
  • What would be accepted as evidence of domestic abuse?  It was felt that ‘evidence’ may be particularly challenging in cases where abuse is not physical and/or is historical, or where no charges have been made or services have been involved; and
  • What processes would be in place to support survivors if enquiry by the court resulted in an initial disclosure of abuse?

Other Actions

10.6.13 Many respondents highlighted that guidance and/or training would be necessary for all professionals involved, both in relation to identifying domestic abuse (and considering the wide range of actions this may entail) and in dealing with this effectively.  Should a duty be imposed on child welfare reporters, it was considered particularly important that they receive robust training in this area.  Other suggestions (offered by more than one respondent each) included:

  • Conduct a specialist risk assessment in cases where domestic abuse is alleged/being investigated;
  • Conduct a criminal record check/check for criminal domestic abuse charges;
  • Information should be sought from other support agencies/reliable sources involved with the child and/or family, including (but not restricted to) social work and the Children’s Hearing System; and
  • Provide equality guidance which develops understanding that both sexes can be and are victims.  

10.7 Promoting Domestic Abuse Risk Assessments

10.7.1 The consultation sought views on whether the Scottish Government should do more to promote domestic abuse risk assessments once a contact and residence case is in court.

Q37. Should the Scottish Government do more to promote domestic abuse risk assessments?

Number Percentage
Yes 126 49%
No 22 9%
No response 106 42%
Total 254 100%

10.7.2 Nearly half (49%) of all respondents agreed that more needed to be done to promote domestic abuse risk assessments, while just 9% disagreed.  The remaining 42% did not provide a response.

Reasons to Promote Domestic Abuse Risk Assessments

10.7.3 Individuals and organisations who were supportive of the promotion/use of risk assessments felt this would help to protect victims and children.  It was also suggested that these may allow for greater investigation of allegations where there are no criminal convictions in place:  

“Risk assessments help to provide a safe environment for children and victims of abuse.”  (Individual)

“…there is evidence that when used they provide further protection for victims.”  (Children’s Organisation)

10.7.4 A number of respondents outlined necessary/possible steps for the promotion/ implementation of domestic abuse risk assessments.  Most commonly, respondents felt that guidance and training (and the promotion of a deeper level of understanding of domestic abuse) was necessary for professionals, both for legal professionals generally, and more specifically for any professional tasked with conducting such an assessment.  Some also called for the development and implementation of the Safe and Together model in this respect, although again, it was stressed that additional training for professionals would be required.

10.7.5 Other suggestions offered by more than one respondent each included:

  • Funding and/or other resources being made available to support this;
  • To develop an assessment tool suitable for both sexes, i.e. to recognise that males can be victims too;
  • Any assessment tool to consider all types of abuse, including emotional and psychological abuse, and not focus solely on physical abuse;
  • Those with expertise in supporting those who have lived with abuse to be involved in the design and implementation of any risk assessment tool;
  • That child welfare officers could include a risk assessment within their reporting duties (again, subject to intensive training), however, others felt such assessments would be more appropriately conducted by others, such as social workers or agencies with more specialist understanding/experience of domestic abuse;
  • Liaison with other agencies involved with the family and/or who may have previously assessed such risks, including schools, social workers, Multi-Agency Risk Assessment Conference (MARAC) and Multi-Agency Tasking and Co-ordination (MATAC) checks, domestic abuse support services and other third sector organisations involved with both/either party, and Independent Advocacy Workers;
  • Clear consequences for those found to be perpetrating domestic abuse (suggestions included regular checks on the offender, a zero tolerance approach, and clear prosecution outcomes);
  • The introduction of a nationally recognised accredited risk assessment; and
  • A pilot project to test and evaluate such risk assessments.

Reasons for Not Supporting Domestic Abuse Risk Assessments

10.7.6 Those who were unsupportive of the promotion of risk assessments provided various reasons.  Several individuals again felt that any risk assessment should only be used when there are actual criminal charges/convictions.  One individual and one organisation also felt that residency and contact hearings were not the forum to deal with domestic abuse, rather this should be dealt with by the criminal justice system.  It was felt that the focus of section 11 cases needed to remain the welfare and best interests of the child.  Several organisations also felt that sufficient options were already available to judges to both call for further information, make referrals to the Children’s Reporter, and to adequately deal with domestic abuse in section 11 cases.

Caveats and Areas for Further Consideration

10.7.7 Several individuals and organisations (who supported the proposal) suggested that more needed to be done to recognise and protect male victims of domestic abuse.  It was felt that the current system involved an inherent bias.  One individual who was unsupportive of the proposal also raised this as an issue.  They suggested that male victims are often not supported, and indeed they are likely to be doubly victimised due to counter-allegations by the perpetrator.

10.7.8 Other respondents, both for and against the proposal highlighted the risk (and perceived prevalence) of false allegations being made in an attempt by one party to cease the child’s contact with the other.  Many of those who were supportive of risk assessments felt that it would be important to establish the truth, some considering that this needed to happen first, while others thought the risk assessment may help to truly understand the situation and identify false allegations.  Meanwhile, those against the use of risk assessments were concerned about the impact such assessments may have on innocent parties:

“Many people are scared to say they are victims and others say that they are if they think it will further their cases.  A domestic abuse risk assessment would perhaps help get to the truth.”  (Individuals)

“These may assist in identifying false claims at an early stage.”  (Individual)

10.7.9 Several respondents (again, both for and against the proposal) also noted current issues around the accuracy and scope of existing risk assessments.  Individuals who were against the proposal suggested this meant the risks outweighed the benefits, while a few organisations (who were generally in favour of the proposal) felt that these assessments would only identify high risk victims (typically in cases of physical abuse) and would not identify contact issues.

10.8 Improving Interaction between Criminal and Civil Courts

10.8.1 The consultation sought views on whether the Scottish Government should explore the possibility of improving the interaction between the criminal and civil courts where there has been an allegation of domestic abuse.

Q38. Should the Scottish Government explore ways to improve interaction between criminal and civil courts where there has been an allegation of domestic abuse?

Number Percentage
Yes 126 50%
No 23 9%
No response 105 41%
Total 254 100%

10.8.2 Half (50%) of all respondents were in favour of the proposal, while only 9% were unsupportive.  The remaining 41% did not provide a quantitative response.  Both individuals and organisations were found across all response options, however, those organisations who were unsupportive of such exploration/interaction were largely from the legal profession (six of the nine organisations who said ‘no’).

Support for Exploring Greater Interaction

10.8.3 Those who supported such interaction felt that it was important for the court to have all the facts in order to inform decision making, and that placing the onus on the civil court to check with the criminal system for any information regarding domestic abuse could relieve some of the burden from victims:

“It is important for the civil court to have all information before them when making a decision regarding a child.”  (Individual)

“This may ensure greater protection for children and vulnerable adults and give Sheriffs more information on which to base their decisions.”  (Local Authority)

10.8.4 It was also suggested that the lack of current interaction was detrimental to some cases and meant that safety was not always properly considered/prioritised:

“At this time there is very little interaction and child contact cases do not take into consideration a person’s convictions but rather their PRRs seem to override all safety concerns.  This is something that is fundamentally needed to ensure victims both adult and children's safety.”  (Individual)

10.8.5 It was also considered that the current system to deal with domestic abuse was too complex:

DA [domestic abuse] is described as life on 3 legal planets, the civil, the criminal and the child. Whatever can be done to improve connectivity would be welcome.”  (Individual)

“In the context of domestic abuse, the distinction between civil and criminal is wholly unhelpful. The current separation of civil and criminal requires women to split their experiences of abuse in unrealistic ways. Doing so reinforces many aspects of the abuse including powerlessness and fragmentation.”  (Domestic Abuse Support Service)

10.8.6 Both those who were concerned about a lack of convictions for domestic abuse and those who were concerned about weight being given to false allegations felt that the court needed the ability to consider police reports/involvement.  Other forums that were considered important for civil courts to interact with included the Children’s Hearing System and social work services.

10.8.7 Several individuals and one family support organisation suggested that greater integration/information sharing may help to protect parties against false accusations in civil proceedings, while others felt that this would allow more robust investigation of disclosure and reduce instances of civil orders conflicting with criminal orders:

“The civil courts need to have that proof and cannot make decisions without support, guidance or conferring with criminal courts.”  (Individual)

“We are aware… that previously in Scotland, there have been cases where protective orders made in criminal cases, to cover adult victims and their children, have been undermined by civil court orders.”  (Children’s Organisation)

10.8.8 Two individuals suggested that only criminal convictions for domestic abuse where this had direct consequences on the wellbeing of the child should hold any merit in the civil process.  However, several organisations suggested that interaction between criminal and civil courts should not require a criminal charge as a prerequisite.  It was also suggested that civil courts should take account of bail conditions and non-harassment orders during hearings and when considering making a contact order.

10.8.9 Again, training for all professionals involved (including the police) was highlighted as a key issue for consideration.  Several respondents also mentioned the need for criminal proceedings to be dealt with more quickly so that delays did not impact on the civil court process/decision, and concerns were raised that an integrated system would only be beneficial if this did not introduce delays into the system.

10.8.10 Some were against the prospect of an integrated court, but were supportive of greater interaction and communication between civil and criminal forums.  Others however, thought there was considerable merit in exploring the potential for integrated courts which could deal with both criminal and civil matters related to domestic abuse.  

Lack of Support for Integrated Courts

10.8.11 Those who responded ‘no’ to the quantitative element of the question, often indicated that they did so as they were not in favour of integrated courts rather than being opposed to information sharing or improved communication per se.  It was suggested that civil and criminal matters should remain separate, with several highlighting the differing levels of proof required in each setting, and outlining a concern that the focus on the wellbeing of the child may become overshadowed in integrated proceedings:

“There are fundamentally different functions and standards of proof in criminal and civil proceedings, respectively, and a shared focus on the criminal dimension of a case is likely to diminish the standing of the child’s welfare as the paramount consideration.”  (Individual)

10.8.12 Several organisations (typically representing the legal profession) felt that the practical and administrative considerations, possible complications and difficulties involved in setting up integrated courts outweighed the potential benefits:

“On a practical level, there would be a huge amount of bureaucracy and time and cost involved in implementing such a system (for example, in drafting new rules of procedure, new appeals process, new body to regulate proceedings due to it being unlikely to fall within the remit of the SCJC or Criminal Court Rules Council, considering new legal aid rules, etc.).”  (Legal Profession)

10.8.13 Several respondents also suggested that more detailed research/consideration was required and that greater clarity was needed around how such increased information sharing and/or integrated court process may work in practice.


Contact

Email: family.law@gov.scot