DOMESTIC ABUSE AND CONTACT CASES BEFORE THE COURTS S11(7A) Children (S) Act 1995

s11(7A) note NOT s11(7)(A) s11(7A) In carrying out the duties imposed by subsection (7)(a) above, the court shall have regard in particular to the matters mentioned in subsection (7B) below. ( 7B)Those matters are— (a)the need to protect the child from—(i)any abuse; or (ii)the risk of any abuse,which affects, or might affect, the child; (b)the effect such abuse, or the risk of such abuse, might have on the child; (c)the ability of a person—(i)who has carried out abuse which affects or might affect the child; or(ii)who might carry out such abuse,to care for, or otherwise meet the needs of, the child; and (d)the effect any abuse, or the risk of any abuse, might have on the carrying out of responsibilities in connection with the welfare of the child by a person who has (or, by virtue of an order under subsection (1), would have) those responsibilities.

"Abuse" s(7C) In subsection (7B) above—“abuse” includes — (a)violence, harassment, threatening conduct and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress; (b)abuse of a person other than the child; and (c)domestic abuse;

"Conduct" “conduct” includes— (a) speech; and (b) presence in a specified place or area.

"Co-operation" (7D)Where— (a)the court is considering making an order under subsection (1) above; and (b)in pursuance of the order two or more relevant persons would have to co-operate with one another as respects matters affecting the child, the court shall consider whether it would be appropriate to make the order.

Some examples Anthony and Elaine are together for eight years. She says he was habitually violent towards her during their time together, but was a "good dad". She is very frightened of him. Anna is aged 6 and Anthony wishes to see her. What provisions might be relevant for the Sheriff? Brian and Carole separated three months ago. He sees Clare on a Saturday. The last two times he has collected her Carole says he has called her "a fucking liar, a tart and an unfit mother". He has also said "I'll see you in a box". What might you say to the Sheriff?

Case law AB v BB 2011 CSOH 127 The section is quoted at the outset and is doubtless in the mind of the judge, but he doesn't provide any guidance on it JB v AG 2012 WL Sheriff Thornton A detailed examination of each sub-section

Bar Reports You would expect this section and background to be mentioned and dealt with by the bar reporter From a case of mine:"The Defender's criminal record discloses a history of domestic assault against a previous partner. It also discloses a conviction for assault in 2000 for which he received the maximum community service, despite the fact that he was a first offender at that time. From that I take it that that was a relatively serious matter. There would then appear to be substance in the suggestion that the Defender is a violent individual."

Conclusion "Clearly the court requires to have regard to the terms of s11(7A) and (7B) of the Children (S) Act As I accept that the Defender has been guilty of domestic abuse the court will need to decide how this should be done."

Working scenario to discuss Louise and Alastair have three children. They separated five months ago, in very acrimonious circumstances. She found out he was having an affair. She cleared the house of everything, including the lightbulbs. She moved to her mother's with the children. Alastair has been desperate to see the children and has now raised a court action. Louise says he "is not safe" for any of the children to see. She says he has been violent towards her on various occasions while they were together. She refuses to have anything to do with him as she is terrified of him and disgusted by him.

You act for the Pursuer, Alastair The timing of these allegations- was any abusive conduct suggested before the writ was raised Is there ANY independent evidence eg doctor's reports? Has Louise ever made false allegations before? Are the children old enough to be spoken to by anyone and if so should that be suggested at an early stage? Look at L's behaviour- she took the lightbulbs (!) The court should be made aware that A's position is that these allegations are only being made to thwart his contact Before embarking on this course you need to explain to your client the possible outcome if he is not, ultimately, believed

You act for the Defender, Louise Abuse (most often) happens "behind closed doors" Louise has mentioned this as soon as the court action has been raised s11(7A)(7B) and (7C) are relevant, as is (7D) the court should not "experiment" with the effect of contact on a child research on the effects of abuse Before embarking on this course you need to advise your client about the possible outcome for her if she is not,ultimately, believed

Sara Matheson mtm SPECIALIST FAMILY LAWYERS