The assumption that contact with both parents is the best thing for a child's welfare is becoming increasingly untenable in the light of what is now known about the nature of so many of the cases that come before the courts.
Rather, what is needed is a more nuanced approach and the acceptance among legal practitioners that sometimes, regrettably, no contact between a child and a parent may actually be the best outcome.
If we are to ensure children are not forced into years of contact that they will find distressing, we need to take all of the following steps: specialist training for family law practitioners; the introduction of minimum standards for reports; the regular review of [the Children's] Reporters' work; and the willingness to admit lawyers may not always be the best people to speak to a child.
In recent years, deciding child contact cases has become more complex. At the same time that awareness of domestic abuse has increased (59,847 reported incidents in 2011-12), there has also been a sea-change in the expectation of the father's role in their children's lives. Promoting contact with the father has become synonymous with the promotion of a child's welfare.
Most Reporters are lawyers. Over the last decade at least, this has meant being trained that the expected outcome will be contact in all but a few extreme cases. As solicitors rarely have any corollary training on the nature and impact of domestic abuse upon children, it is perhaps not completely surprising that some Reporters go so far as to assert there are "no child welfare reasons why contact should not operate" even when there is evidence from a number of sources of the children witnessing the physical assault of their mother.
As many family law practitioners are aware, solicitors and sheriffs hearing family cases would benefit from specialist training on the impact of domestic abuse on children, as well as from the establishment of clear guidelines for the conduct of Reporters' investigations.
In a minority of cases in which allegations of domestic abuse are made, the Reporter appointed merely states he or she does not intend to "rehearse the allegations made by the parties" without any further investigation into those allegations (such as contacting the police to see if there is a record of incidents of domestic abuse at that address). At best, reports such as this contribute little new information of use for the sheriff hearing the case and, at worst, may result in unsafe contact.
There is also huge variation in the extent to which Reporters seek the child's views on contact, with some solicitors avoiding speaking to the child at all and others limiting it to a general chat about the child's school or hobbies, out of fear of asking "leading" questions.
Only the most confident child is likely to blurt out what they want to say to someone who is essentially a stranger. There is a clear need to ensure those taking the views of a child for a court report are trained in speaking with children.
At present, the Scottish Government has a working party considering how to improve the consistency of the standards of court reports in family cases. It is my view that they should give serious consideration to at least piloting the use of accredited professionals who already have specialist skills in speaking with children – particularly where the case involves very young children.
We live in a time when the "gender equality" agenda is being used as a basis for shared parenting in England. On both sides of the Border, child contact disputes are often portrayed as a competition between mothers and fathers – or more particularly, between men and women – rather than a determination of what is best for each child.
Because the perpetrator of domestic abuse in so many cases is the child's father, not ordering contact with the child in such cases inevitably reduces the number of fathers securing contact via the court system.
It is just too easy to misconstrue this as gender bias. However, listening to the children who are the subject of the disputes reveals this is not the case.
Perhaps the greatest challenge facing us is how best to prepare the parents of the future to attend to how they parent and not just their right to choose to be a parent.
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