Fixing the foundations – improving family law’s response to child contact and domestic abuse
Authors: Dr Fiona Morrison and Professor Kay Tisdall
Programme Director for Childhood Practice / Lecturer in Childhood Studies
Chair of Childhood Policy
The Scottish Law Commission has been consulting on a range of new proposals to improve civil remedies for domestic abuse, including in cases of child contact and domestic abuse. While the need for enhanced civil justice responses is well-evidenced in their work, our research[1] on child contact and domestic abuse shows that effective change demands much more than new, or minor amendments to, legislation. We need to address foundational issues: shifting cultures, systemic investment, and radically reimagining how to deal with child contact disputes.
In this blog, we explore how family law can more effectively address domestic abuse in child contact cases. You can read our full response to the Scottish Law Commission’s consultation here.
Reforms with poor implementation
Scotland’s current approach to family law suffers from systemic weaknesses. Although the Children (Scotland) Act 2020 introduced groundbreaking reforms to strengthen children’s rights in family law, its lack of implementation represents a significant failure. Many of its key provisions remain dormant, undermining the intended protections for children’s rights. The disconnect – between legal aspirations and their application – compromises ambitions to advance children’s rights and casts doubt on the feasibility of future legal reforms in this area. Many of the proposals in the Scottish Law Commission’s Discussion Paper are well-considered and would be welcome. But well-crafted legislation is not enough. Any success in advancing children’s rights depends on effective implementation, adequate resourcing and embedding mechanisms that drive forward accountability for children’s rights. Without these, reforms will fall short of delivering their intended benefits.
Making domestic abuse visible in family law
Research shows that many of disputed child contact cases involve significant child welfare concerns and allegations of domestic abuse. Yet victims of domestic abuse frequently report being actively discouraged from raising these critical safety issues in family court proceedings. When adult victims do raise concerns about their own or their children’s safety, they are often negatively labelled as ‘hostile’ or ‘uncooperative’. This creates a dangerous paradox: those seeking protection are effectively silenced by the very system designed to safeguard them.
Valuable lessons can be drawn from other public services that have fostered environments where disclosing domestic abuse is encouraged. Notably, the health sector, particularly maternity and emergency care, has seen significant success through routinely asking about domestic abuse. This proactive approach has increased the identification of abuse and improved access to support. The family justice system would benefit from adopting similar principles and approaches, helping to shift the culture from one that deters disclosure to one that acknowledges and addresses legitimate safety concerns.
Adversarial adult systems and the impact on children’s rights
A fundamental flaw in the current family law system lies in its adult and adversarial orientation. This undermines attention to participation rights under Article 12(2) of the UN Convention on the Rights of the Child, and its ability to decide on children’s best interests, as required by Section 11(7)(a) of the Children (Scotland) Act 1995. A system built on confrontation rather than open inquiry creates a hostile environment where adult disputes risk overshadowing children’s rights.
This inherent contradiction — between a system designed for adult conflict and its mandate to protect children — highlights the need for radical reform. A decisive shift is required away from the traditional adult adversarial model towards a more inquisitorial approach that fully embeds and embraces children’s rights, both in legislation and in practice.
Falling between the cracks
Scotland’s legal systems deal with cases of childhood domestic abuse in inconsistent ways. Although domestic abuse is recognised as both a child protection concern and a criminal offence[2], the family law system is ill-equipped to handle these issues effectively. The contrast with child protection processes is stark. For instance, court orders on child contact or residence lack the routine review mechanisms found in the Children’s Hearings System and other child protection frameworks, leaving potentially dangerous situations unmonitored over time. Those responsible for preparing child welfare reports often lack specialised training in communication with children, risk assessment, domestic abuse, and child welfare evaluation — all critical skills in cases involving domestic abuse. Child contact centres, in contrast to supervised contact provision in child protection services, frequently lack adequate resources and expertise to safely monitor parent-child contact in cases involving domestic abuse and child welfare concerns. A Register for Child Welfare Reporters and the regulation of contact centres are yet unmet requirements of the Children (Scotland) Act 2020 that aimed to address these concerns.
However, perhaps the most troubling issue is that family actions routinely exclude children from proceedings that fundamentally affect their rights and safety—an exclusion that would be unacceptable in child protection cases. Framing child contact and residence as adult disputes rather than child welfare or child rights concerns undermines children’s status and standing. It raises serious concerns about whether courts are best placed to act in their best interests. When children are denied meaningful opportunities to participate in decisions that impact their lives, their rights to protection and participation are diminished, and courts are hindered in accurately weighing and safeguarding their welfare.
How to strengthen the foundations?
To effectively address child contact and domestic abuse, we need to strengthen the foundations and the approaches of the legal system. The family law system needs to be equipped to handle domestic abuse cases with the same rigour and resources as those in child protection and criminal law. Reform in this area should be transformative, shifting from a system that marginalises children to one that places their rights to protection and participation at the heart of legal decision-making.
The recent UNCRC Incorporation (Scotland) Act 2024 underscores the need for robust accountability systems including in family law. To uphold children’s rights, accessible mechanisms need to be established to allow them to raise concerns, make complaints, and seek remedy and redress when their rights are violated in family law proceedings. Currently, children rarely have independent legal representation, leaving them without meaningful pathways to challenge rights violations or ensure accountability. This gap undermines their access to justice and their ability to protect their own interests within legal systems. Addressing this requires a commitment to developing strong accountability mechanisms, including clear and accessible complaint procedures and effective pathways for children to obtain remedy and redress when their rights are breached.
[1] Royal Society of Edinburgh Personal Research Fellowship on children’s rights accountability in law (September 2024- September 2025); ESRC IAA Grant with cross-sector partners on implementing the UNCRC in Scotland (September 2024 – August 2025); European Commission with Scottish Women’s Aid and country partners: Improving Justice in Child Contact (2018 – 2021); Scottish Government Grant: Children’s Participation in Family Actions: Probing Compliance with Children’s Human Rights (May 2018 – March 2020).
[2] The Children’s Hearings (Scotland) Act 2011 introduced a child having “a close connection with a person who has carried out domestic abuse” as specific grounds for referral to the children’s hearings system (Scotland’s child welfare and juvenile justice system). The Domestic Abuse (Scotland) 2018 Act sought to expand the definition and criminalisation of domestic abuse. While not directly addressing children as victims in their own right, if a child witnesses, is targeted by, or used as a tool of coercive, controlling or other abusive behaviour, this is designated as a potential aggravating factor in sentencing for the offence. Thus, we see that both child protection and criminal law recognise the pervasive and ongoing nature and impacts of domestic abuse, on children as well as adult survivors.
Comments are closed
Comments to this thread have been closed by the post author or by an administrator.