Court enforcement of child contact orders: evidence review

9. Child-led approaches: the voices of children in decision-making

9.1 Section 16 of the Children (Scotland) Bill introduces a requirement on the court to investigate non-compliance with an order. The Scottish Government would expect, as part of the investigation into why an order has not been complied with the court would need to obtain the views of the child.

9.2 In European and North American jurisdictions, children's views are sought, where appropriate, in family court cases. In child contact cases, older children's views may be more actively sought by the court, particularly when the young person has expressed a view that contact should reduce, be only indirect, or cease.

9.3 One exception to this trend is in cases where parental alienation is substantiated by the court. Research suggests that giving children decision-making rights in cases of parental alienation is not always be in their best interests, as they may feel undue stress, guilt and pressure regarding the decision.^[38] Where the court concludes evidence of parental alienation, research suggests the views of the child have to be carefully considered. In some cases, the courts have not considered the child's wishes in the same way as in other family court cases, or have balanced their views alongside other evidence.^[39] However some literature^[40] notes that legal and child welfare professionals are increasingly knowledgeable about the distinctions between children who are alleged to be alienated from a parent and those with justifiable reasons for wishing to change their contact arrangements.

9.4 Children's involvement in court varies widely across the jurisdictions studied here, and even in England alone research notes that children's participation varied between courts.^[41] Overall, children tend not to be involved in the court's decision-making because they are either deemed too young or are not consulted.^[42]

9.5 In some child-led approaches to breaches of contact order, where older children were consulted, their views were then not considered in the court's decision, and in the majority of cases where children were involved, courts did not take any action to address the child's trauma or upset due to the court experience.^[43]