It is generally accepted that children ought to have relationship with both parents. That remains the case when those parents separate. What that relationship looks like can vary- there is no “one size fits all” when determining how much time children should spend with each parent.
It is also a fact of life that people make mistakes. Sometimes, those errors can be costly. The conduct of the parents can, on occasion, have a huge impact on the living or contact arrangements for their children. That is particularly true where a separated parent has been convicted of a criminal offence.
The severity of the offence
The degree to which the conviction will affect matters will be dependent on the offence the parent has committed. An offence which has no direct bearing on contact, such as being committed of fraud or shoplifting, will likely have no impact at all on the arrangements, unless a custodial sentence is imposed. A driving offence which results in a ban from driving may make transporting children to and from contact more difficult but nonetheless, in most cases, it will still be possible for contact to take place. At the other end of the scale, a conviction for an offence committed against a child will likely result in all contact being withdrawn, or in supervision requirements being imposed. A violent offence committed against the other parent will undoubtedly also have an influence on contact. The Children (Scotland) Act 1995 which is the legislation under which an application for contact with a child must currently be made, requires the court to take account of any abuse which may be directed at the child or which will otherwise affect the child (e.g. by inhibiting the abilities of another person with parental rights and responsibilities to discharge those rights and responsibilities) when deciding whether or not to make a contact order. The Children (Scotland) Act 2020 (which is not yet in force) will clarify that further by stating clearly that children must be protected from abuse and that “abuse” includes abuse directed at other members of the child’s family, including the other parent. The victim cannot be expected to liaise directly with the perpetrator, which will make transferring children between households difficult, or in some cases, impossible.
Pre-trial bail conditions
Even being charged with a criminal offence can cause issues, prior to the criminal case being determined. Bail conditions may prevent one parent from approaching or contacting the other. That may result in third parties being required to assist in moving the children between households. A third party cannot be compelled by a court to assist with this, which may result in a withdrawal of contact- a particularly hard pill to swallow if the accused is ultimately acquitted.
Standard of proof
It must also be remembered that the standard of proof for criminal and civil proceedings is different. In criminal cases it must be proven “beyond reasonable doubt” that the individual committed the offence of which they are accused. In civil cases, a lower standard of proof applies, and the court must only be satisfied “beyond reasonable doubt” that the individual conducted themselves in the manner alleged. Cases involving the care arrangements for children are heard in the civil court. It does not, therefore, follow that a “not guilty” or “not proven” verdict in the criminal court will prevent the conduct of the acquitted party being raised again in the context of an action involving the arrangements for the care of their children.
Securing legal advice in relation to these issues at an early opportunity is crucial. Our child law solicitors are experts in dealing in cases where one of the parents of a child has been accused or convicted of a crime. Please get in touch if you require assistance.
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Legal Director
