Contact between a parent and their child may become an issue when the child’s parents do not live together, or when they once lived together but are now separated.
Sometimes, parents can dispute in court:
- whether a parent is allowed to see their child, and
- under what conditions a parent can see their child.
Three of the UNCRC’s most important Articles are especially relevant to court cases around child contact:
- Article 12, which says that a child’s views should be meaningfully considered in matters that affect them,
- Article 3, which says that a child’s best interests should be protected, and
- Article 19, which says that a child has the right to be protected from abuse.
All these principles are taken into account under Scots law.
The views of the child
A parent can go to court to try and get:
- legal permission for contact with their child, or
- legal permission for their child to live with them at least some of the time.
When they do, the court is legally required to give the child in question a chance to express their views— after “taking account of the child’s age and maturity.”
If the child does express a view, the court then has to “have regard to such views as he [or she] may express”. However, children and young people have told the Commissioner's office that they often feel their views are ignored in contact proceedings.
Best interests and protection from abuse
A court may make a decision contrary to a child’s views when those views are considered to be against their best interests.
In Scots law around contact proceedings, there is a tradition of taking a child’s welfare as the paramount consideration. This means that welfare should be the most important thing in the court’s mind when making a decision around parental contact. In this way, Scots law puts a child’s best interests at a higher level of consideration than even the UNCRC.
Sometimes a child’s views conflict with what a court determines the child’s best interests to be. One of the concerns both the Commissioner's office and Scottish Women’s Aid have had is that a court can force a child to maintain contact with an abusive parent when they don’t want to— if this is determined to be in a child’s best interests.
In Scots law, Sheriffs must take into account abuse, or the risk of abuse, when making contact decisions. This includes emotional, verbal, and physical abuse of children— and of others close to them.
More on domestic abuse