Part 1 of the Children (Scotland) Act 1995: review

Part 9: Domestic Abuse

Introduction

9.01 In this section of the consultation, we are seeking your views on a number of topics in relation to protecting victims of domestic abuse and their children during court proceedings. These include:

• Banning of personal cross examination of victims of domestic abuse;
• Protection of victims and vulnerable parties in child welfare hearings;
• Protection of children from abuse or risk of abuse;
• Preventing repeated litigation;
• Ensuring the civil courts are provided with information on domestic abuse in actions under section 11 of the 1995 Act;
• Promoting the use of domestic abuse risk assessments; and
• Improving interaction between criminal and civil courts in the context of domestic abuse.

9.02 The Policy Memorandum for the Bill leading to the Domestic Abuse (Scotland) Act 2018 ^[74] defines domestic abuse as physical violence and threats and psychological and emotional abuse.

9.03 We are aware of initiatives such as the Safe and Together model and Barnahus concept which can be used to support and help victims of domestic abuse and their children. The Safe and Together model focuses on keeping a child safe and together with the non-offending parent. This is done by encouraging parenting with the non-offending parent as the default position and working with the other parent to reduce risk and harm to the child. The Barnahus concept is an interdisciplinary and multi-agency service for child victims and witnesses of abuse and other serious crimes used in some other countries.

9.04 There is research showing that domestic abuse was alleged in half of all court actions over contact. When a child was not seeing their non-resident parent, this was allegedly due to violence upon the mother in half of the cases and due to alleged violence upon the child in 18% of the cases ^[75] . Research by CAFCASS and Women’s Aid in 2017 shows that in England and Wales, domestic abuse was alleged in 62% of cases with fathers more likely to be the subject of allegations than mothers. Cases featuring allegations of domestic abuse were more likely to result in an order for no direct contact than cases without ^[76] . Research undertaken by the Ministry of Justice in 2009 showed that 53% of the contact and residence cases in England and Wales involved allegations of domestic abuse or concerns about abduction or harm to children ^[77] .

9.05 According to the Scottish Crime and Justice Survey ^[78] in 2014/15, 39.4% of those who experienced partner abuse in the last 12 months said that children were living in their household when the most recent incident took place. In addition, in 63.7% of cases where children were living in the household the children were present during the most recent incident.

Personal cross examination of victims of domestic abuse

Background

9.06 The Scottish Government’s Programme for Scotland for 2017-18 ^[79] included a commitment to consult on banning personal cross examination of domestic abuse victims in contact and residence cases as there is evidence that this could be used to prolong domestic abuse.

9.07 There are currently not many contact and residence cases where this is an issue at the moment as relatively few contact cases go to proof. However, the work by the Family Law Committee of the Scottish Civil Justice Council on case management may mean more cases are likely to go to proof (see paragraph 9.22).

9.08 Banning cross examination of domestic abuse victims in family proceedings in England and Wales was included in the Prison and Courts Bill which was introduced to the UK Parliament in February 2017 ^[80] . The Bill fell following the calling of the General Election in May 2017. The UK Government have recently indicated that they remain committed to legislating on this for England and Wales ^[81] .

9.09 The Australian Government consulted last year on proposals to introduce similar legislation ^[82] . In New Zealand, legislation introduced in 2016 means that an individual who has allegations against them of domestic abuse may not cross examine a complainant or a child witness unless a judge gives permission ^[83] . This extends to both civil and criminal cases.

9.10 One option in contact and residence cases in Scotland would be to ban a person from cross examining a victim of domestic abuse if:

• The person has a criminal conviction relating to domestic abuse; or
• The person is the subject of a civil protection order against domestic abuse; or

• The court directs that the person should not be allowed to carry out personal cross examination based on some evidence of domestic abuse.

9.11 We propose that any ban on personal cross examination of a victim of domestic abuse would also extend to the personal cross examination of any child involved in the case.

Pros/Cons

9.12 Banning personal examination would mean that victims of domestic abuse do not suffer further abuse by a perpetrator who is using this method to prolong the abuse.

9.13 This would also bring the civil courts in line with the criminal courts where personal cross examination of a domestic abuse victim is already scheduled to be banned under the provisions of the Domestic Abuse (Scotland) Act 2018.

9.14 However, in order to have a fair trial the person who has or is alleged to have domestically abused another person would need to have a legal representative who would be able to examine and cross examine the other party. These cases would need to be specified in the Legal Aid (Scotland) Act 1986 as a case where a person gets automatic legal aid. This would lead to increased legal aid costs.

9.15 A ban on personal cross examination could have wider implications on how the whole case is conducted by the person who has or is alleged to have domestically abused another person.

Question 32: Should personal cross examination of domestic abuse victims be banned in court cases concerning contact and residence?
Yes
No
Why did you select your answer above?

Protection of victims and vulnerable parties in child welfare hearings

Background

9.16 Child Welfare Hearings are designed to be informal hearings in residence and contact cases. They are aimed at helping to resolve the dispute. Provision on the procedure for Child Welfare Hearings is made in Rules of Court.

9.17 We have received representations about domestic abuse victims concerned at having to sit at the same table as their abusers in Child Welfare Hearings. This matter was discussed in the FLC’s sub-committee on case management in family actions which reported in October 2017 ^[84] .

9.18 The sub-committee sought further information from the SCTS as to the steps that courts currently take to protect parties at child welfare hearings where there is a background of alleged or proven domestic abuse. This information has been obtained by the SCTS and published ^[85] .

9.19 The SCTS information is based on a short survey of 15 courts of various sizes throughout Scotland. A third of the courts surveyed indicated that there was an automatic separation of parties at all Child Welfare Hearings whilst the remainder said that suitable arrangements would be made if advised by solicitors or parties in advance of the hearing. The courts rely on parties bringing to their attention any possible issue in relation to domestic abuse. More than half the courts surveyed did not receive any formal applications by parties not to appear in a child welfare hearing because of alleged/proven domestic abuse. Only two of the 15 courts surveyed had received applications from individuals to use a live television link to avoid being in the same room as the other individual.

9.20 We are very grateful to the SCTS for carrying out this survey and are also very grateful to those who took part.

9.21 Following on from the survey we are seeking views on whether section 11 of the 1995 Act should be amended to provide that the court can, if it sees fit, give directions to protect domestic abuse victims and other vulnerable parties at any hearings.

9.22 The FLC sub-committee on case management in family actions made a number oF recommendations. The SCJC plan to consult on the report. One recommendation (see 4.8 (f) of the report) was that an initial case management hearing should function as a triage hearing. At this hearing, the sheriff would seek to establish whether the case is (i) of a complex, or potentially high-conflict, nature which will require proactive judicial case management leading up to a proof (“the proof track”); or (ii) a more straightforward case where the issues in dispute appear to be capable of being resolved by a series of Child Welfare Hearings without the need for a proof (“the fast track”).

9.23 This might help protect victims of domestic abuse as “proof track” cases would not be required to go through a succession of Child Welfare Hearings.

Pros and cons

9.24 Amending section 11 of the 1995 Act to allow the court if it sees fit to give directions to protect domestic abuse victims could give further protection to victims.

Question 33): Should section 11 of the 1995 Act be amended to provide that the court can, if it sees fit, give directions to protect domestic abuse victims and other vulnerable parties at any hearings heard as a result of an application under section 11?
Yes
No
Why did you select your answer above?

Protection of children from abuse or risk of abuse

Background

9.25 Sub-sections (7A) to (7E) of section 11 of the 1995 Act were added by the Family Law (Scotland) Act 2006 (the 2006 Act). They provide a list of matters that a court shall have regard to when considering the welfare of a child. This includes the need to protect the child from any abuse or risk of abuse.

9.26 During its post legislative scrutiny of the 2006 Act, the Justice Committee considered that there is a lack of evidence as to the extent to which these subsections have made children any safer ^[86] .

9.27 This consultation seeks views on whether to keep, amend or remove sub-sections (7A) to (7E) of section 11 of the 1995 Act.

Pros and Cons

9.28 The main benefit of sub-sections (7A) to (7E) is that they can be a powerful tool to protect victims of domestic abuse.

9.29 However, there is also a view that the sub-sections can provide an incentive for conflict between parents as they could encourage parties who are wishing to exclude a non-resident parent to say there has been domestic abuse.

Question 34): Should subsections (7A)-(7E) of section 11 of the 1995 Act containing a list of matters that a court shall have regard to be kept?
Please select only one answer.
a) Yes –retain as currently.
b) Yes– but amend (please give details).
c) No– remove these provisions.
Why did you select your answer above?

Repeated litigation

Background

9.30 We are aware that there are cases where individuals have raised repeated cases regarding contact and residence for the same child.

9.31 In England and Wales, section 91(14) of the Children Act 1989 provides that:

“On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.”

9.32 This consultation seeks your views about whether provision of this nature should be added to section 11 of the 1995 Act.

Pros and cons

9.33 Introducing a provision which requires the court to give permission for any repeated litigation in section 11 cases could reduce the risk of such litigation being used as a way of continuing domestic abuse. Introducing a provision could also benefit children and young people as repeated litigation may not be in their best interests and could lead to extended periods of uncertainty. It could also have cost savings in reducing unnecessary litigation.

9.34 On the other hand, a provision of this nature could lead to litigators seeking leave of the court to raise a further action under section 11 and could lead to cases becoming longer as leave would have to be sought before a fresh action could be raised.

9.35 It might also be difficult to enforce this provision in practice.

Question 35): Should section 11 of the 1995 Act be amended to lay down that no further application under section 11 in respect of the child concerned may be made without leave of the court?
Yes
No
Why did you select your answer above?

Information provided to the civil courts on domestic abuse in actions under section 11 of the 1995 Act.

Background

9.36 This consultation seeks your views on what more, if anything, should be done to ensure the civil courts have information on domestic abuse when considering a case under section 11 of the 1995 Act.

9.37 We believe that information on domestic abuse should be provided to the courts in cases being heard under section 11 of the 1995 Act. This enables the courts to take full account of domestic abuse when considering the case. This consultation discusses, at paragraphs 9.25-9.29, sub-sections 11(7A) to (7E) of section 11 of the 1995 Act, which are designed to provide protection from abuse.

9.38 In some instances, one of the parties to a section 11 case may have criminal convictions in relation to domestic abuse or there may be criminal proceedings taking place. In other cases, a party in a section 11 case may have a civil protection order (eg an interdict) to protect them from domestic abuse. And in other section 11 cases, there may have been domestic abuse, or allegations of domestic abuse, but there may be no relevant criminal convictions or civil protection orders in place.

9.39 Parties may indicate in their initial pleadings or defences that they have been subjected to domestic abuse. In addition, a child welfare report may note any allegations of domestic abuse. However, there is no guarantee that information on domestic abuse is available to the court when they are dealing with a contact or residence case.

9.40 In England and Wales, a practice direction was issued in 2017 which says that the family court must at all stages of the proceedings consider whether domestic abuse is raised as an issue, either by the parties or by CAFCASS or otherwise ^[87] . The practice direction goes on to list the actions the court should follow in these cases.

9.41 For Scotland, there are a number of potential options – both legislative and non-legislative – to ensure that the courts are aware of domestic abuse that has taken place when they are considering a case under section 11 of the 1995 Act. Potential options include:

• No further action and just continuing to rely on relevant information being provided in the initial pleadings and defences provided in a section 11 case ^[88] ;
• Placing a proactive duty in primary legislation on the civil courts to establish if there has been domestic abuse;
• If, as discussed in part 2, powers are taken to regulate child welfare reporters the primary legislation setting out the functions of the child welfare reporter could provide that they must consider in each case whether there is evidence of domestic abuse and, if so, report on it accordingly. This would be in line with existing practice of child welfare reporters;
• Including domestic abuse in any welfare checklist for the courts to consider in section 11 cases (see paragraphs 10.17-10.20) Any such checklist would build on the existing provisions in sub-sections 11 (7A) to (7E) on protection from abuse; or
• Discuss with the Law Society of Scotland and the Family Law Association whether guidance for practitioners would be helpful. Any such guidance could reflect that knowledge about the dynamics of domestic abuse is improving.

9.42 It would, of course, be possible to take both non-legislative action (eg guidance for practitioners) and legislative action (eg duties on courts and on child welfare reporters).

Pros/Cons

9.43 It can be argued that the existing system and procedures should ensure that information on domestic abuse is provided to the courts. However, some stakeholders say that it does not. Therefore, this consultation is seeking views on whether action should be taken and, if so, whether any such action should be legislative or non-legislative.

Question 36): Should action be taken to ensure the civil courts have information on domestic abuse when considering a case under section 11 of the 1995 Act?
Yes
No
If yes, what action should be taken?
Please select all answers that apply.
a) Introducing a duty in legislation on the civil courts to establish if there has been domestic abuse.
b) Placing a duty in legislation on child welfare reporters that they must consider in each case whether there is evidence of domestic abuse and, if so, report on it accordingly.
c) Including domestic abuse in any welfare checklist for the courts to consider in section 11 cases.
d) Discussing with the Law Society of Scotland and the Family Law Association whether guidance for practitioners would be helpful.
e) Other (please give details).
Why did you select your answer(s) above?

Domestic abuse risk assessments

Background

9.44 We are seeking your views on whether we should do more to promote domestic abuse risk assessments once a contact and residence case is in court.

9.45 Domestic abuse risk assessments could provide an assessment of the risks posed by a perpetrator of domestic abuse to a child and to a non-abusive parent. It would be important to:

• Ensure those carrying out any such assessment are fully trained;
• Hold the perpetrator of domestic abuse to account; and
• Ensure the court has sufficient information to reach an informed decision on the contact and residence case it is dealing with but is not overloaded.

9.46 One option might be to ensure that child welfare reporters have the necessary training to carry out their duties. The regulation of child welfare reporters is discussed at paragraphs 2.54 to 2.75 in this consultation.

Question 37): Should the Scottish Government do more to promote domestic abuse risk assessments?
Yes
No
If yes what should be done?
Why did you select your answer above?

Improving the interaction between criminal and civil courts in the context of domestic abuse

Background

9.47 This consultation seeks your views on whether we should explore the possibility of improving the interaction between the criminal and civil courts where there has been an allegation of domestic abuse.

9.48 The potential to improve engagement between courts considering criminal and civil issues where there has been an allegation of domestic abuse was raised during the parliamentary debates on the Domestic Abuse (Scotland) Act 2018.

9.49 Integrated courts dealing with both criminal and civil matters exist in other jurisdictions such as New York ^[89] where there have been integrated Domestic Violence Courts since 2001. In these courts, a single judge deals with all the civil, criminal and family matters for a single family.

9.50 Toronto has a similar model where there is a criminal allegation of domestic violence and the accused is also involved in a related law case concerning child custody and access, child support, spousal support or a restraining order.

9.51 This would be a significant change from current practice in Scottish Courts where criminal and civil matters are dealt with separately. However, civil courts dealing with child contact matters in Scotland are required, by subsections (7A) to (7E) of the 1995 Act, to consider whether there is a context of domestic abuse, even if no criminal case has been progressed.

9.52 The types of civil cases that would be relevant to better interaction could include contact cases where domestic abuse is alleged and cases where a civil protection order (such as an interdict) to protect against domestic abuse is being sought.

9.53 Evidence from the Scottish Crime and Justice Survey confirms that not all domestic abuse incidents result in an alleged crime being reported to the police or prosecuted. Victims will often experience multiple incidents of abuse before reporting abuse to the police. Any arrangements for improving interaction between criminal and civil courts where there is a criminal case involving domestic abuse would only cover a proportion of civil cases where domestic abuse might be a relevant factor for the court.

9.54 The standards of proof for criminal and civil matters are fundamentally different.

9.55 Under the Judiciary and Courts (Scotland) Act 2008, the Lord President has statutory responsibility for making and maintaining arrangements for securing the efficient disposal of business in the Scottish Courts. Any proposed changes in this area would, therefore, need to be developed in close dialogue with the Lord President and the Sheriffs Principal.

9.56 The existing system in Scotland, with sheriffs hearing both criminal and civil cases, means that in some instances a single sheriff may already deal with a criminal case and a civil case which cover the same incidents of domestic abuse. However, there are no active arrangements for ensuring that a single sheriff considers both civil and criminal matters involving allegations of domestic abuse.

Pros/Cons

9.57 A potential advantage of better interaction between civil and criminal courts is that a victim of domestic abuse could be providing evidence and information to the same sheriff which should reduce stress.

9.58 Evidence from the model for integrated courts used in New York (where a criminal allegation is the requirement for entry into the integrated court with related cases in two of the three following matters – family, criminal and matrimonial) is mixed. Some research has shown that an integrated court has the advantages of reducing inconsistent orders, and improving access to information, communication and collaboration and the availability of services. However, there is also evidence which suggests that many integrated courts actually required more court appearances overall and a longer time to case decision than separate courts. ^[90]

9.59 Options for formal integration of courts in Scotland raise a number of major issues:

• If a criminal accusation of domestic abuse is a prerequisite for entry into an integrated court, it is not clear what would happen if a party was found not guilty or not proven in the criminal case;
• If an integrated court only dealt with cases where there is a criminal element, there could still be many civil contact cases where domestic abuse may be alleged but there have been no criminal proceedings;
• There would need to be clarity as to whether an integrated court would also deal with other family matters. This could include, for example, divorce;
• There would also need to be clarity about what would happen if allegations of domestic abuse were raised in a civil case (on, for example, contact) after it had started. We would need to consider if such a case would be transferred from the ordinary courts to the integrated court;
• A single integrated court could require new rules of procedure, a new appeals process, consideration of the existing differences in the standard of proof in criminal and civil cases and consideration of how party-party expenses would be dealt with;
• A criminal case involves the Crown Office and Procurator Fiscal Service whereas a civil case does not;
• A single integrated court could also require a new body to regulate proceedings as this is unlikely to fall within the remit of the SCJC or the Criminal Court Rules Council;
• Legal Aid rules are different for both the criminal and civil courts so further work would need to be done on establishing the levels of legal aid;
• Further evaluation of the effectiveness of an integrated court structure would need to be undertaken;
• Many parties have different solicitors acting for them in criminal and civil cases. If only one solicitor is required, then this could have implications on the civil, criminal and children’s legal assistance registers held by SLAB. In addition, the different requirements for professional indemnities means that civil solicitors pay more than criminal firms;
• There are also a number of sheriffs who focus only on family law work and therefore may not be able to hear criminal cases; and
• The maximum penalty envisaged by the Domestic Abuse (Scotland) Act 2018 is fourteen years’ imprisonment. A sentence of this nature could not be imposed by the sheriff, but only by the High Court. This would create another layer of complexity about civil and criminal cases being handled by the same court.

9.60 The list above shows that there are a number of detailed practical issues to consider. In addition, we would want to carry out research on the experience of other jurisdictions which have integrated courts or other forms of arrangements for interaction between the criminal and civil courts, to learn from their experience.

9.61 Therefore, we do not consider that integrated courts could be established quickly. It would, though, still be useful to know whether you think this is an issue which we should explore further, bearing in mind that work in this area could take some considerable time.

Question 38): Should the Scottish Government explore ways to improve interaction between criminal and civil courts where there has been an allegation of domestic abuse?
Yes
No
Why did you select your answer above?