Presentation Transcript

1. The Child’s Voice in Private Law Family Proceedings in ScotlandKirsteen MackaySchool of LawFunded by the ESRC

2. United Nations Convention on the Rights of the Child – Article 12 “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child either directly, or through a representative or an appropriate body [...]”
3. Key Findings: 1.Narrow Assumptions of “Ideal family” Emphasis on father child relationship but not mother child relationship 2. Far from “ideal” relationships (problem families) 3. Children most likely to have views over-ridden when they do not want contact with a non-resident father Almost all such children described abusive behaviour
4. Potted History of Relative Rights Patria Potestas Guardianship of Infants Act 1886 “I am bound to say that, all things being equal, I think it is against the interests of the child that it should be removed from the custody of the father and put in the custody of anyone else.” McNab v McNab1926 S.C. 778 Guardianship Act 1973 “a mother shall have the same rights and authority as the law allows to a father.” Families Need Fathers est. 1974
5. Present Time: Assumption of On-Going Contact UNCRC: Article 9:1 No child should be separated from a parent against his or her will UNCRC: Article 9:3 “State Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.” White v White 2001 SLT 485 It may normally be assumed that a child will benefit from continued contact with the natural parent. There being no need to lead evidence to this effect.
6. Emphasis on the Father-Child Relationship “As a natural father of the said children, the pursuer has a positive contribution to make to the said children’s upbringing [...] It is important for the children’s self-esteem and development to know the identity of their natural father [...] the said children will become alienated from the pursuer in the absence of a regular pattern of contact.” (Case 1/95) No similar assertions in respect of contact with a Mother
7. Problem Families Domestic Violence: 49% of cases DV was alleged by one or other parent or described by a child 32% of families were known to police due to DV Criminal Convictions: 10% of fathers (1 mother). Substance Abuse: 28% of children from cases where alleged Social Work Involvement: 24% of children were known to social services
8. Views Expressed by Children in the Data Set
9. Children Not Wanting Contact: “my dad [...] made me do all the chores and if I didn’t he hit me. He treats the other children [step siblings] like they are number one and I am invisible. They wouldn’t let me phone home and would not let me go home. This makes me really sad.” Danielle, aged 10 “I don’t want to go to dad because he shouts and swears. He grabs my collar and he hurts me....He makes us clean his house. When he drinks he falls asleep on the couch.” Callum, aged 10. “I don’t want to see you because you shout in my face when I was sick.” Beth, aged 6
10. Contact Outcomes
11. Children Not Wanting to See their MotherCase 1/75 Jamie:“ I do not want to see her as she hit me for telling the truth to dad.” Age 12. Claire:“ I do not want to see or even to call her mum because of what she did to my brother.” Age 11 Outcome: Residence to Dad. No Contact with Mum
12. Children Not Wanting to See their Father Case2/72 Katie and Sophiesee the reporter together and state: “they do not want to see their father and say they will run away if they are made to see him.” Aged 8 & 10 years. “There appear to be no child welfare based reasons why contact should not operate [....]I do not feel that either of the girls are sufficiently mature to be able to evaluate their feelings objectively. [....]The girls are obviously fearful of their father, but I do suspect this is a result of the perception of their mother’s reaction rather than a genuine fear of spending time with the pursuer.” Outcome: Contact ordered
13. Relative Merits: Mother’s Drinking v Father’s ViolenceCase 2/40 Reporter recounts: Hannah:“does not want to stay with her mother as she would not feel comfortable and because they would not be fed but would be sent to the shop to buy [food].” Aged 10 Jason:“..is clear he would like to live with his mum as his dad is always shouting for no reason and because his dad has ‘hit him more in the last 6 months than his mum did in six years.’ Aged 9 Reporter: “In all the circumstances I recommend the children continue to live with [their father] and that the issue of contact is left to the discretion of [their father].”
14. Boredom and Absent “contact” Parent Case 2/109: Non-Resident Father Louise: “says she does not want to stay over mid-week at all. She said that when they go for contact her dad goes out and it is their grandparents that look after them. She also said that her sister cries at her dads and that she misses her mum and their [baby] brother.” Aged 13. Outcome: All of every 2nd Weekend Contact. Case 2/156: Non-Resident Mother Cassie says: “.... Is very clear she doesn't not want contact with her mother at this stage because she was put in a room by herself during contact while her mother entertained her boyfriend. She said it was not a ‘quality’ visit but was ‘boring’.” Aged 11 Outcome: NO contact.
15. Concluding Remarks: Evidence of a fundamental assumption that a child’s welfare is dependant on ongoing contact with their Father specifically. Children’s views are most likely to be over-ridden when they are negative about seeing their father. Evidence of a weaker assumption of contact with non-resident Mothers. Historical power imbalances may therefore be perpetuated by the Courts.