Attendees at our Brodies Family Law Conference 2023 heard from Janys Scott KC and Dr Ruth Friskney on the topic of domestic abuse and the interaction between criminal and civil proceedings where such abuse is at issue.
Various studies have considered this topic, including research and papers from The Scottish Civil Justice Hub, The Scottish Centre for Crime & Justice Research and the Universities of Glasgow and Edinburgh.
Lack of integration between civil and criminal systems
The research findings suggest that there is no standard mechanism for information about domestic abuse allegations (including those which feature in criminal proceedings) being shared with family lawyers or the court in civil proceedings. This is concerning when there may be allegations of domestic abuse in around half of child contact court cases. It is imperative that family lawyers and sheriffs are aware of any historic or ongoing domestic abuse within relationships or family networks.
There is also a concern that the civil and criminal courts are not fully informed about what is happening in the other process. Often there is cross-over between the two, so transparency and awareness about progress in and the outcome of criminal proceedings is important to the civil case, and vice versa. For example, bail conditions relating to the other parent and/or children and non-harassment orders are important factors in criminal cases involving domestic abuse which can affect, and are affected by, what is happening in civil processes. Family lawyers often encounter situations in which a third party has to become involved with handovers as bail conditions prevent parties from meeting or communicating with one another. It is often the case that criminal practitioners and in turn the criminal courts are unaware of the practicalities if the accused and complainer have to continue to co-parent when bail conditions are imposed on the accused. In some cases, bail conditions can lead to a child not having contact with their parent in circumstances where they ought to do so.
Proofs in civil cases and criminal trials
Difficulties can arise when the court considers it necessary to hear evidence from witnesses in cases where orders are sought in relation to the care of children and there is an outstanding criminal case which is expected to proceed to trial. There continues to be significant delays in trials being fixed in solemn cases, which can cause delays in decisions being made in relation to longer-term care arrangements for children. Family lawyers have difficult decisions to make regarding advice to their client on whether to proceed with a proof whilst that case is outstanding (and risk the court taking a cautious approach pending the outcome of those proceedings) or whether to wait until the conclusion of the criminal process, which can involve a significant delay.
Insufficient space to effectively consider domestic abuse in child contact proceedings?
During the conference, it was acknowledged that at present, there is a limited understanding of how domestic abuse affects children. When making an order in relation to a child, the court requires to have, as its paramount consideration, the best interests of that child. There are other matters to which the court should have regard, including the need to protect the child from any abuse or the risk of abuse, the effect that abuse (or risk of it) may have on the child and the ability of a person who has carried (or may carry out) such abuse to care for or meet the needs of that child. The court also needs to take into account any proven or alleged domestic abuse between parents when the orders made by the court will require them to co-operate and co-parent. (S11(7A-7E) of 1995 Act). Research suggests that notwithstanding the current legislation, there is a perception that the court is limited in its ability to attach significant weight to domestic abuse when considering what may be in a child's best interests with regard to their care arrangements.
There have been instances where sheriffs have not given appropriate consideration to the criteria set out above and held that domestic abuse which occurred during the relationship was "no longer a factor" in relation to the child and should not prevent an award of contact, as occurred in the case of LRK v AG 2012 SLT Sh Ct 107. That decision was appealed, and the Sheriff Appeal Court held that the sheriff had failed attach sufficient weight to sections 11(7B and 7D) of the 1995 Act when making decisions about what was in that child's best interests regarding their care arrangements.
Some suggest that domestic abuse and the crossover between civil and criminal proceedings is an area for which lawyers, social workers, police, the judiciary and other professions require further insight and training, to understand the key issues in both processes. It is vital that domestic abuse is given appropriate consideration in family proceedings. There are calls for greater options for information sharing, including between civil and criminal courts, in cases involving domestic abuse and children.
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