SWRC Inform: Contact and Residence Orders

Welcome to our final post in the series on Domestic Abuse and Scots Law – Training for Solicitors following our recent seminar by Helen Hughes. See our first two blog posts here and here. This blog covers a few of the key learning points in relation to contact and residence orders in cases where clients are affected by domestic abuse.

Helen concluded the seminar by providing an overview of the private law procedures for safeguarding children and for child care arrangements to be fixed by the courts. She highlighted the following key points of which solicitors should be aware when this is within a context of domestic abuse. Again, this may also be helpful to note for those supporting victims of domestic abuse. These are:

• There is no presumption against contact in domestic abuse cases;

• However, there is an obligation on the court to take domestic abuse into account when deciding what orders should be granted in connection with a child (this is in terms of s.11(7A) to (7E) of the Children (Scotland) Act 1995 (as amended by the Family Law (Scotland) Act 2006)).

• The court is required to take account of domestic abuse when considering applications made in terms of Section 11 of the Children (Scotland) Act 1995, even when the abuse is not directed at the child.

• The overriding principle remains that the welfare of the child concerned is the paramount consideration. Additionally, the court shall not make any order unless it considers that it would be better for the child that the order be made than that none should be made at all (as per Section 11(7)(a) of the Children (Scotland) Act 1995).

Practical Advice

In practical terms, solicitors need to:

• Advise their client on their options and the potential outcomes in order to empower them to make a decision on the course of action they wish to take.

• Obtain information from their client to establish if there has been domestic abuse at the outset of a case as it is important that the court is made aware of incidents of domestic abuse at the earliest opportunity.

• Manage their client’s expectations, and take instructions on whether the client wishes to make the Court aware of incidents of domestic abuse.

• Where the court is made aware of domestic abuse, solicitors need to explain what the abusive behaviour is and the impact this has on the child and the primary care-giver both now and in the future.

• Obtain as much information regarding the child’s circumstances as possible, and the impact contact/residence will actually have on them. Contact should not be viewed in a vacuum.

• Bear in mind the parallel system of Children’s Hearings and the implications that can have on contact and residence proceedings.

Interested in learning more?

The SWRC hopes to run a full-day training session on contact and residence orders later this year. In the meantime, check out some of our resources here. We will be publishing more guides soon, including one on child contact and residence, so keep an eye on our website, Twitter and Facebook pages for details of this and of our future training events.

We hope you have found our series of blogs posts interesting! We’d love to hear your feedback, and your thoughts on any future training you’d be interested in attending, so let us know in the comments or on social media.

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