The approach in Scotland to child contact disputes involving allegations of domestic abuse

Challenging undue influence? Rethinking children’s participation in contested child contact

“…Children's direct participation was identified as a rare occurrence by interview participants (for a similar finding, see Mackay 2013Mackay , 2018. Some legal participants were sceptical that attempts for children to participate directly ever originated from children but rather were instigated by parents seeking to advance their own cases.…”

“…The combination of strong primary legislation and a specified range of mechanisms provides a strong basis for children's participation rights to be realised in Scottish law, particularly under s. 11 orders. Despite this apparent strength, evidence has accumulated that children are very often not experiencing this in practice (Tisdall 2016, Mackay 2018, Scottish Government 2019a). This article presents such evidence, combining it with recent empirical research undertaken on compliance with the UNCRC, which is described below.…”

“…Dialogue or communication does not routinely take place between the child and the court once the child's views have been obtained (Mackay 2013(Mackay , 2018. Therefore, the influenced child does not know how their views are interpreted or considered by the court, issues that were identified as priorities by the children's expert group (see also Morrison et al, 2020a, Scottish Government 2019a, Yello!…”

A systematic review to investigate whether the current family court process in Scotland, leads to emotionally functional adults in cases of adverse childhood experiences.

“…The UNCRC Act insists that the best interests of the child will be one of the primary considerations when ruling on child contact arrangements, however in Scotland, this principle is further strengthened by considering the child's welfare as paramount. This approach ensures that the courts adopt a child-centred view during family proceedings (Holt, 2011;MacKay, , 2018. Legislation states that a welfare test must be met before any contact order will be granted, yet the 1995 Act contains no clear statute as to what a welfare test entails, merely that the child's welfare is of paramount consideration.…”

“…The mechanisms used to gather the views of the child, have been heavy criticised (Scottish courts and tribunals, 2009; Whitecross, 2011), with research supporting the findings that the child's views are not being adequately represented (Daly, 2018;Holt, 2011;Mackay, 2016;Mackay, 2018). Typically, these individuals are solicitors who receive no specialist training in terms of communicating with children, transmitting the circumstances of a child to the court or the psychological impact of abuse MacKay, 2018).…”