Domestic Abuse Victims in Family Law Courts

Eilidh Whiteford Excerpts

Thursday 15th September 2016 Commons Chamber

[Dr Eilidh Whiteford (Banff and Buchan) (SNP)]

I, too, thank the hon. Member for Penistone and Stocksbridge (Angela Smith) for securing this important debate and for her moving speech. I pay tribute to the other Members who have shared moving stories of their constituents’ experiences.

I commend Women’s Aid for the publication of the “Nineteen Child Homicides” report. It makes for harrowing reading, but as legislators, we must not stay silent on the issues it raises and we must speak up for the children whose safety, wellbeing and lives are being put at risk by unsafe and poorly risk-assessed contact with parents who are known perpetrators of domestic abuse. The fact that over the past 10 years in England and Wales 19 children have been murdered, two mothers have been murdered, two further children have faced attempts on their lives and seven fathers have killed themselves after killing their children indicates that there are systemic shortcomings in the approach to family contact that need to be addressed.

I wish I could stand here and say that all is rosy in Scotland, but in reality we face very similar challenges. Obviously, we have always had a distinct legal system, and since devolution the Scottish Parliament has had responsibility for legislation and policy in this area. In some respects, we have a fairly robust legislative framework, but its application sometimes falls very far short and we know that there is a lot more to do. I am glad that Nicola Sturgeon announced last week that a new domestic abuse Bill will be part of the new programme for Government. There is recognition that psychological abuse and coercive and controlling behaviour can be hard to address under our existing laws, and proposed new legislation will seek to put that right.

As understanding of coercive control has grown, however, it has given rise to difficult questions about child contact arrangements and the extent to which abusers can use them and court procedures to continue to exert control over a former partner and their children. The underlying issues on both sides of the border are very similar, and I want to highlight the shortcomings in the implementation of our existing legislation and identify those areas where new legislation or regulatory guidance could strengthen the safety and wellbeing of children and limit the opportunities for former partners to perpetrate further harm.

Section 24 of the Family Law (Scotland) Act 2006 refers to orders made under section 11 of the Children (Scotland) Act 1995, and rightly puts child welfare and children’s interests as a priority. The law states clearly that when a court is considering the welfare of a child in relation to parental rights and responsibilities, it must take into account the need to protect the child from any abuse, or risk of abuse, that affects, or might affect, the child. It also states that courts must take into account the effect such abuse, or risk of abuse, might have on the ability of the person who has carried out the abuse to care for, or meet the needs of, the child, and the effect that any abuse might have on the person carrying out those responsibilities.

When a parent raises an action for contact or residence for their child, the court is also under a statutory duty to give the child the opportunity to express his or her views,

“taking account of the child’s age and maturity”,

and it has to

“have regard for such views”

as he or she may express, giving them due weight relative against the child’s age and maturity. That ensures that the legislation complies with article 12.2 of the UN convention on the rights of the child.

So far, so good. Unfortunately, however, that is not how it always works in practice. I fear that the law is not being consistently applied; that it can still prioritise the rights of a parent with a history of violence over the wishes of children; and that it takes inadequate account of their safety and scant account of the safety of the parent with care.

Earlier this week, Edinburgh University hosted a conference that grappled with some of the difficult issues regarding child contact. I was not able to attend, but one of the keynote presentations was made by the Rev. Tracey Hart, who last October was sentenced to 12 months in jail for contempt of court, having been accused of attempting to keep her children away from their father, who press reports suggest is a convicted murderer with a history of violence. Ms Hart spent eight days in jail before being freed on appeal. The Appeal Court judges ruled that the sentence was “incompetent” and said that she should never have been convicted in the first place, much less jailed.

What disturbs me most is that not one, but two sheriffs were involved in those outrageous proceedings. That brings home to me that we are still battling vestiges of an institutional and attitudinal culture where the dynamics of coercive control are very poorly understood; where the impact of domestic abuse is underestimated; and where the voices of children are diminished. The experience of Tracey Hart and her children suggests that, in some parts of our judiciary, parental rights still override the wellbeing and safety of children. Children’s own rights to have their voices heard and respected are not taken seriously enough, and mothers who seek to protect themselves and their children form abusive and dangerous former partners are still seen in some quarters as bitter or vindictive troublemakers. Despite the law being unambiguous, we still seem to have some way to go to ensure that all sheriffs are properly equipped to preside over such cases.

Tracey Hart has been extremely brave in speaking out, but another troubling issue that arises from her experience is the extent to which court processes and the child contact arrangements ordered by courts can be used by abusive ex-partners to continue to perpetrate abuse. That point very much echoes the comments of previous speakers. We need to ask whether contact arrangements are sufficiently robust in protecting families form further abuse, and to find ways to prevent contact from becoming the vehicle through which an abusive ex can continue to abuse their former partner. We need to look at how contact is properly risk-assessed; how staff in courts and contact centres are trained to spot signs of controlling and manipulative behaviour; how a safe environment is maintained; whether new regulator guidance needs to be introduced; and how we can really put the interests of the child at the heart of decisions.

At the moment, there is a presumption that contact with parents is a good thing, but if a parent has a history of violence and abuse, is that really the case? I do not think that we have yet got the balance right. Tracey Hart says that her children were reluctant to spend time with their father. A psychiatrist’s assessment of her children indicated that contact was damaging their mental health, and she describes her elder son even vomiting before a contact session. But those children were still compelled to attend sessions and cajoled by staff into spending time with their father when they did not want to do so.

Frankly, that is just not good enough. We need to ensure that all parts of these islands become a safer place for those fleeing domestic abuse. It is incumbent on every single one of us to name these abuses of power for exactly what they are, and to speak out on behalf of those whose lives are damaged and endangered under present approaches. We can and must do much better. I hope that Ministers are listening and that we will do so.