Section 11(7A) and (7B) of the Children (Scotland) Act 1995 confirms that the Court shall have regard to matters concerning domestic abuse in so far as they relate to the welfare concerns of a child.  However, it provides little framework on how that would occur in practice to ensure that allegations are  consistently investigated by the Court. The inclusion of sections 11(7A) and (7B) does not create a presumption against contact for the perpetrator of abuse. Abuse is a factor in the wider welfare test. 

Therefore, when a party makes allegations of domestic abuse in child-related proceedings there is often no formal process to find the truth of those allegations within those proceedings until proof. Separate criminal enquiries may be made and can then be relied upon in the child related matters, however in many cases allegations of domestic abuse are unreported and therefore undocumented; or there may be a significant delay before the criminal trial takes place.  In the absence of formal guidance, the court will consider domestic violence allegations and how they relate to orders sought by the parties, with some sheriffs perhaps taking a more conservative approach in light of outstanding criminal charges or historical abuse allegations while others perhaps not.

In a recent Sheriff Court case A (Assisted Person) v A [2021] SCGLW 018 the court relied upon criminal proceedings before making decisions in the Family proceedings. The sheriff concluded that no child report was required and that the husband's abusive behaviour towards the wife would have an impact on the welfare of the child. He therefore ordered no contact should take place between the father and child as it was not in the child's best interests. In another case, K v G [2021] SAC (Civ) 1, the sheriff's decision was successfully appealed due to his failure to take account of the possible effects of abuse or risks of abuse. The sheriff dismissed the domestic abuse perpetrated by the father as historic and therefore irrelevant to the question of contact. The Sheriff Appeal Court overturned his decision.

So how would Court consider the allegations of domestic abuse in a more consistent manner before a proof and where they are asked to consider contact on an interim basis?

England and Wales Approach

In England, domestic abuse allegations within children proceedings are dealt with rather differently with the introduction of Practice Direction (a set of procedural rules) called "Child Arrangements & Contact Orders Practice Direction 12J" in October 2017. The practice direction includes definitions of domestic abuse (which has recently updated in August 2021 to include coercive and controlling behaviour as result of Domestic Abuse Act 2021)  and also sets out how rules on how allegations of domestic abuse should be dealt with by the Court prior to any involvement of Cafcass (The Children and Family Court Advisory and Support Service).

One key component was for allegations of domestic violence to considered to be set out in schedule called a "Scott Schedule" and the other party responds after which a Judge would considers if a fact finding hearing is necessary to determine the truth of those allegations. The fact finding hearing itself allows the Judge to hear evidence and oral testimony at the outset before deciding if the accuser has proven any of the allegations to be true.

However, in practice PD12J was not being followed, or inconsistently followed and it was found that the process heavily relied on specific events of domestic abuse in isolation of the nature of the parties' relationship meaning that abuse such as coercive control was rarely acknowledged to exist or simply minimised. These profound difficulties with were considered in detail in conjoined appeals. On 30 March 2021, in re H-N and Others (domestic abuse: finding of fact hearing) 2021 EWCA Civ 448 the Court of Appeal considered four appeals all of which concerned domestic violence in relation to Child Proceedings and the application of PD12J. They held that restricting parties to a schedule may not allow the court to see a full picture of repetitive abuse and that another method of presenting allegations to the Court might be necessary such as concise narrative statements; or further investigations may need to be done to establish the best way to detail domestic violence to the Court where a more contextual approach should be adopted.  In their conclusion the Court of Appeal confirmed the overall importance of "modern thinking" and "proper understanding of the nature of domestic violence" within the judiciary when considering child matters.

This Appeal has highlighted the importance of having a more contextual understanding of the nature of the relationship between the parties and that will now be highly persuasive when looking at domestic abuse and its impact on future of care arrangements of the children. This is particularly important where allegations of coercive control are being made by one party. Perhaps borrowing the suggestions above may allow a different approach to be adopted within the context of children proceedings in Scotland.

First published by The Journal of the Law Society of Scotland