One of the most common reasons that people contact our helpline is to talk about issues they are facing relating to child contact and domestic abuse.
You may be worried about what will happen if you decide to leave with your children and want to understand more about your rights. If you’re already separated, there may be issues with child contact being used to continue to control, monitor, and harass you; you may have difficulty making contact arrangements due to abusive communication, changing goalposts, or unreasonable demands; or there may be concerns about the safety and wellbeing of your children.
This is a complex topic and we hope that you will find some of this information helpful, however that this is just a general guide and does not replace legal advice. For legal advice, specific to your individual situation, we recommend speaking to a solicitor or a legal advice service. See ‘Who else can help’ below.
If you have separated from an abusive partner and you have children with them, you may have to reach an agreement on where and with who the children live (residence) and when they will see the other parent that they don’t live with (contact). This may be decided informally (out of court, by mutual agreement), or it may be decided by going through the family courts.
Discussing where a child lives and how much time they spend with each parent (also known as child contact arrangements) can be a scary time for adults and children experiencing domestic abuse. In situations where there is concern about the children’s welfare with the other parent, you may feel that child contact needs to be supervised, or in some cases stopped, for your safety and the safety of the child.
The Scottish Women’s Rights Centre have a helpful guide about the law in relation to child contact and residence, including information on parental rights and responsibilities.
If you are going to the family courts, you should find a solicitor if you don’t already have one.
Note that it may also be possible for the child(ren) to instruct their own solicitor, if the solicitor believes they are mature enough to do so.
For legal advice and representation in relation to child contact, you should find a solicitor who practices family law. If you are getting support from a domestic abuse service such as Women’s Aid or FearFree, or an advice service such as Citizens’ Advice, you could ask them whether they know of solicitors in the local area.
You can also search on the Family Law Association website, which lets you look for solicitors by area, and by whether or not they can provide advice and legal representation funded through legal aid. It can be good to choose a few to contact, to see which one seems best matched to your needs.
‘Legal aid’ is funding managed by the Scottish Legal Aid Board to help with the costs of legal advice and/or legal representation in court. Legal aid is ‘means tested’, so your income and savings are assessed to determine whether you are financially eligible and if so, whether or not the advice and representation is free or you have to contribute towards the cost. To check whether you are eligible, you can use the Scottish Legal Aid Board website’s online calculator.
Some things to think about, or ask solicitors about, before deciding on one, could be:
- Have they dealt with similar family law cases relating to domestic abuse before?
- Is their initial meeting free of charge?
- Can they be paid by legal aid?
- What kind of impression do you get, talking to them/ their office?
- Can you bring a support worker or friend to the meeting? Do you feel comfortable talking to them?
- Would you prefer a solicitor of a certain gender, if possible?
For more information, see the Scottish Women’s Rights Centre’s legal guide, ‘Getting Legal Representation’.
In the family court, a sheriff (judge) will take evidence from both parties (you and your ex-partner) on what you are both asking the court to decide on, regarding where the child should live and spend time.
As part of that process, the sheriff will hold what is called a Child Welfare Hearing, to consider the best way forward and whether to make any decisions on contact and/or residence. To inform their decision, the sheriff is likely to appoint a Child Welfare Reporter to ask your children for their views on what you are asking the court, where they would like to live and spend their time. This Reporter will also speak to you, your partner and other individuals involved in the child’s life. The court may also send the children a form (called a Form F9) which seeks their views in writing.
When making their decision, a sheriff uses their judgement to decide what is in the best interests of the child. When they have made a decision about the child’s contact arrangements (where they live and how much time they spend with either parent), it is legally binding. If either parent disagrees about the decision that has been made, or an aspect of the decision, it may be possible to appeal against the sheriff’s decision, in certain circumstances.
There is more detailed information in the booklet ‘Court Ordered Child Contact in Scotland’, from Glasgow Women’s Aid. This was co-produced with survivors of domestic abuse and helps explain the Court ordered Child Contact process and the family court system for those experiencing domestic abuse.
Child contact centres
Child contact centres are used as a place where contact can happen between a child and a parent who does not live with the child (non-resident parent) or another relative such as grandparents. When making a contact order (the decision in court about how much and when a child spends time with the non-resident parent), a sheriff may decide that contact should happen in a child contact centre, particularly if the child hasn’t seen the non-resident parent in a long time. Child contact centres could also be used by parents who have not gone through the family courts, but who agree that contact taking place in one of their homes isn’t suitable.
Child contact centres are generally seen by the courts as a temporary measure where contact can take place with other adults around. It can either be supervised, meaning contact centre staff will observe the contact taking place and may report back to the court, or it can be supported, where contact centre staff will be available but not necessarily consistently with the adult and child. If this contact is deemed to go well, then it is likely that the court will consider unsupervised contact, and this will then be moved to the home of the non-resident parent.
There are contact centres all over Scotland. Contact centre staff should be able to offer safety measures, such as separate entrances and exits, and separate waiting areas, if you are using them but do not want to see your abusive ex-partner. Contact the contact centre to discuss your options.
Glasgow Women’s Aid booklet ‘Court Ordered Child Contact in Scotland’ contains useful advice for communicating with your child around contact centres and child contact generally (p.15).
Where parents are having difficulty agreeing child contact arrangements, mediation may sometimes be suggested. However, in situations where there has been domestic abuse, mediation may not be appropriate and domestic abuse professionals recommend against it.
The aim of mediation is to facilitate balanced discussions to negotiate things like child contact. This is typically not possible where there has been domestic abuse because the abusive parent may use the process to continue to try and control and intimidate you. You may also find it difficult to communicate your position in this setting because of the impact of previous abuse.
Court-ordered child contact arrangements are legally binding and it is important that you keep to these. There can be legal implications if you do not.
If either parent intentionally or “recklessly” breaches the court order, the other can take this back to the court. For breaching a court order, you can be held in contempt of court. For example, this could be because you don’t make your children available for contact when you are supposed to or because the other parent does not return the children at the agreed time. Being held in contempt of court can result in a fine or a prison sentence.
If the non-resident parent does not turn up for contact, in that situation they will not be held in contempt of court as this is instead seen as them not taking up their parental rights and responsibilities.
For immediate concerns about a child’s safety, the police should be contacted on 999. Additionally, you could contact social work and report your concerns.
If contact arrangements are informal, you are under no legal obligation to ensure the other parent sees the children. If you are concerned that contact would put your children at risk, you can cease contact altogether and the onus would be on the other parent to go to court to challenge this if they choose to. It is important that you seek legal advice before making the decision to stop contact, unless it is a matter of urgency for their safety.
If the contact is court-ordered, the court should be informed of any change in circumstances, including where children are expressing that they do not want to see the other parent. If you have a solicitor, you should let them know about this. Keep a record of any incidents or reasons for concern and if the child is seeing any professionals, such as GPs, health visitors or school counsellors, any concerns that are noted down may serve as supporting evidence later if the case is reviewed.
If you are working with your local Women’s Aid, your children may be able to access support from their children and young people’s service.
Once a contact order has been made by a sheriff, it is legally binding. In order to have the terms of this contact order changed (for instance, a change in the allocated days or times that a child spends with a parent), either party can return to court to have the decision reviewed. The party who is returning the order to the court for review must be able to demonstrate that there has been a material change in circumstances which requires the court to be involved again (e.g. a change in working hours, a change in the child’s school hours etc). If your ex-partner asks you to amend the contact arrangements outside of court, always consult your solicitor first.
Many people fleeing domestic abuse move to another area with their children.
Within the UK
So long as there is not a court order stating that the children need to remain in the local area, there is no statutory prohibition preventing you moving out of the local area to another part of Scotland or anywhere within the UK.
However, if you do this without a court order allowing the move or the other parent’s consent, they are entitled to raise a court action to challenge any move and have the children returned. Additionally, if your ex-partner is aware in advance that you may be leaving the local area with the children, they are entitled to raise a court order that restricts the children leaving the local area without their consent.
This means that the court must agree that the proposed move is in the child’s best interests, looking at several factors including the views of the child. You will be required to demonstrate and evidence why the child should live elsewhere.
Outside the UK
You are not legally allowed to travel abroad (outside of the UK) with the children without the consent of the other parent. This does not have to be in writing but this would be the best evidence of consent.
This includes both moving abroad and going on holiday. If your ex-partner refuses consent, you can seek legal advice on your options which may include seeking the court’s permission to travel or move the children abroad.
The Scottish Women’s Rights Centre may be able to help with free legal information and support for women experiencing domestic abuse or other forms of gender-based violence, including those with no recourse to public funds. They provide a helpline service as well as local legal surgeries and have useful information guides available on their website.
Clan childlaw provide free legal advice and representation for children and young people in Scotland.
The Scottish Child Law Centre provides free confidential legal advice via telephone and email, on all aspects of Scots law relating to children and young people.
The Family Law Association website includes a search tool for finding Family Law solicitors by area.
The Law Society cannot provide legal advice but can help by assisting you in finding a solicitor and providing information on other legal-related matters. The website has a search tool and useful information such as FAQs about dealing with solicitors, legal fees, etc.
The Scottish Legal Aid Board is responsible for managing legal aid in Scotland. Legal aid allows people who would otherwise not be able to afford it, to get help for their legal problems. They have eligibility estimators and FAQs on their website.
Survivors and workers in Glasgow Women’s Aid put together this resource on court ordered child contact in Scotland to inform women and children of what to expect in the courts.