The Relevance of Domestic Abuse & Coercive Control in Child Contact Proceedings

In 2021-22 Police in Scotland recorded 64,807 incidents of domestic abuse. Actual incidence is likely to be much higher, given that few people report domestic abuse to the police. The Domestic Abuse (Scotland) Act 2018 has a particular focus on the concept of ‘coercive control’. The concept is indicative of the power and control in relationships where domestic abuse exists.  It is undeniable that domestic abuse does not cease upon separation. On occasion a separation can aggravate the perpetrator given their need to regain control. The Children (Scotland) Act 1995 was amended so that family courts had to ensure the protection of children from domestic abuse prior to any s11 order, which relates to orders granted by the court in relation to contact with or residence of children.

Children and young people can be victims of coercive control, just like adults. They may feel confused, entrapped or harmed by the perpetrator. This control can harm children both emotionally, physically, socially and educationally. Often child contact provides an opportunity for the perpetrator to continue the abuse. This can be difficult as the perpetrator can find ways to hide these behaviours from family members or professionals. The pro-contact philosophy, reflecting the framework of the Children (Scotland) Act 1995, can be damaging where domestic abuse is involved. At Jones Whyte, we focus on ensuring any agreements involving a child have regard to the power and control that abusers have over those they abuse.

In most cases, arrangements for contact are made amongst the parties themselves without court. Very few child contact cases proceed to Proof in Scotland, meaning there are very few judgments reported that we can base analysis of how the civil courts understand domestic abuse. The lack of judicial guidance has been noted by Sheriffs in past cases (2006 Fam LR 100 at [10]).

The majority of cases that do progress through the courts are held in the Sheriff Court. An early step to this process is Child Welfare hearings. These hearings are held in private and are focused on resolution. It may be at this hearing where a child welfare reporter is appointed. This report is carried out by a third party solicitor to seek the views of the child and to undertake enquiries to report to the court. This is a useful procedural step in identifying characteristics of a perpetrator.

It is important for professionals to understand the complexity of coercive control to determine if a child’s views have been manipulated by the perpetrator. There a number of factors that make this difficult, primarily the age of a child and their ability to recognise the abuse at a young age. However, every child has a right to be free of this abuse and it is our primary concern to ensure that we are able to assist our clients in this respect.

In Scotland, there is much work to be done to protect victims of domestic abuse. Despite reforms, it remains prevalent in Scotland. At Jones Whyte, we aim to build a relationship of trust with our clients, enabling them to discuss these matters with their instructed agent. We understand the difficulty and complexity the impact of domestic abuse can have, and ensure we protect our clients wherever possible.