Written by Dr Fiona Morrison, Centre for Child Wellbeing and Protection, University of Stirling
The 16 Days of Activism is a time to consider and act to end gender-based violence. The 16 Days are bookended by the International Day for the Elimination of Violence against Women on the 25th of November, and Human Rights Day on the 10th December. With this focus on human rights, I want to use this blog to think about children’s human rights as they are set out in the UN Convention on the Rights of the Child (CRC) and what this means for post-separation child contact with non-resident fathers when there is domestic abuse. I’m drawing here from my research which explored children’s own experiences of contact with fathers when there is domestic abuse.
Children’s rights and child contact
The CRC sets out that a child’s upbringing is a responsibility that is ideally shared by parents (Article 18). Where this isn’t possible, like in circumstances of parental separation, the right to continue a relationship (through contact) resides with a child not with a parent (Article 9). Any decisions about contact should have a child’s best interests as a primary consideration (Article 3). When decisions about contact are being made, a child should have the opportunity to express their views freely, and these views should be given weight in accordance with the child’s age and maturity (Article 12).
From the CRC we see that contact is a child’s right. We also see how important the concept best interests and children’s participation rights are for this issue. In this blog, I’m setting aside children’s participation rights and focussing on best interests and the significance domestic abuse has for this.
Best interests, domestic abuse and contact
‘Best interests’ is a slippery concept. It is criticised for being ambiguous and indeterminate. This leaves it open to bias, to be tainted by personal values or indeed prejudices. A child’s best interests’ risks being whatever an adult wants them to be. Yet, this elasticity of best interests is also its strength. It gives latitude for decisions to be tailored to individual children and their particular circumstances.
But let’s return to the specific issue of contact and domestic abuse – why might contact in these circumstances be considered contrary to children’s interests? It used to be that domestic abuse was thought of as an adult concern. That is was something that children didn’t see or that domestic abuse was something that could kept from children. However, there is now a wealth of evidence that shows children are intimately aware of and are affected by domestic abuse. Children witness domestic abuse, they observe the aftermath and they also act to interrupt or stop abuse. Children tell us about their intimate knowledge and experience of domestic abuse. How they may be directly involved in abuse and indeed how they may be directly abused themselves. We know that the impact of domestic abuse can have short- and long-term consequences for children’s health and wellbeing. We also know that domestic abuse does not necessarily end following parental separation. Separation is not ‘a vaccination against abuse’ – in fact, separation is a particular point of risk for adult and child victims / survivors – abuse may escalate, and post-separation contact may become a particular focus for continued abuse. At its most extreme, there are cases where children and women have been killed during or as a result of child contact with a father who has perpetrated domestic abuse.
This all begins to cast light on why domestic abuse matters when weighing a child’s best interests when making decisions about contact. It raises further questions about the implications for child contact in this context. What risks might contact present? For the child? Or for the non-abusing parent? What risks might there be in ending contact? Of course, risks in this context matter, but is risk the only way we should think about a child’s best interests? What about the quality of the relationship between the child and the parent who has carried out abuse? Or the child’s qualitative experience of contact? Does it matter if the abusive parent taken responsibility for and begun to address their behaviour? And of course, we can’t lose sight of the child’s views in all of this – what influence should a child’s views have? Is it in a child’s interests to ‘force contact’ against their wishes? Especially, when we consider that children who have experienced abuse tell us that they want a greater say in decisions about contact.
To be clear, I am not arguing that children’s best interests are never served through contact when there has been domestic abuse. Ending the relationship between a child and a parent has consequences too. However, I am arguing that when there is domestic abuse, serious attention must be paid to both the physical and the emotional safety of children – and that of the adult victim too. These are important considerations – they must not be overlooked, nor compromised when weighing a child’s interests in decisions about contact.
Developments in Scotland
In Scotland reform in this area is afoot. The Scottish Government is reviewing the Children (Scotland) Act 1995. Its recent public consultation asked specifically about the issue child contact and domestic abuse. We will have to wait to see what developments unfold, how they may act to protect children’s best interests and the role they will play in the ending of violence against women and children.
 Children’s participation rights are fundamental to children’s rights more broadly – you can read more about my on children’s participation rights in law here. You might also be interested in the work of Power Up, Power Down that helped children with experience of domestic abuse explore court processes involved in child contact.