Law and Legal Affairs: Good, bad, ugly - child contact cases laid bare

Published on 16/12/2010 18:06

'TAKING court action as a parent or grandparent in respect of contact with a child is an extraordinarily stressful undertaking," write the authors of new research into the experience of child contact cases in Scots sheriff courts.

The stress was almost off the GHQ stress scale applied by the Newcastle University team, Dr Graeme Wilson and Karen Laing, with more than half the pursuers who had raised contact actions reporting moderate or high levels of stress that affected their health and daily life. The stress was at its highest while the case was active in court.

Wilson and Laing looked at child contact actions which were part of divorce arrangements, and those in which contact was the primary purpose of the action. Stress levels were significantly higher among the latter group.

"That was one of our more unexpected findings" says Dr Wilson. "It is reported that divorce is one of the most stressful events in life but anxiety is even higher for those where the single issue is establishing or regularising contact with children. We aren't able to see from our cases which were actions brought by non-resident parents who never married and which arose where an arrangement that appeared to be settled at time of divorce was being revisited. But it is probably useful for professionals in child contact cases to appreciate how serious it can be for the parties."

Laing and Wilson identified 901 cases from the Glasgow, Falkirk and Aberdeen sheriffdoms in 2006 and attempted to contact the parties, principally through their solicitors, and send them a questionnaire.

The initial response was modest and the attrition rate high by the time of a follow-up questionnaire six months later. The 70 who initially responded representing those raising a child contact action on its own fell to 23, while 43 initially responded on the basis that child contact was part of their divorce action.

The numbers are considerably higher than achieved by other research projects in the same territory whose conclusions are commonly cited.

Laing and Wilson also interviewed solicitors, sheriff clerks and sheriffs and were permitted to observe 20 child welfare hearings. "We're extremely grateful for those who allowed us to sit in," says Dr Wilson. "We were able to see how often the hearing allowed a process of feedback to the court on how well or badly the contacts were developing that you couldn't really tell from reading about them off the page."

The research focuses largely on pursuers, mostly fathers, though there were also some grandparents and one non-resident mother, and explores some reasons they gave for going to court and their reflections on how it went."It is harder to identify and contact the defenders, mainly mothers," says Dr Wilson, "though that would complement this research if we could overcome those problems."

The pursuers' perspectives are informative and occasionally counter-intuitive. A significant number raised actions apparently as a last throw of the dice where communication with the mother was poor to non-existent and with little expectation of achieving anything positive. Some said if nothing else it would demonstrate to their children at some time in the future how hard they had fought for them. Others appeared simply to want to fight.

Most whose actions had reached some conclusion said the situation had improved for them and their children; contact was better and even communication with the mother had improved, though most thought the arrangements were still fragile.

Pursuers were more likely to be fairly treated, even if they did not get what they had hoped for, if the sheriff spoke directly to them rather than about them to the solicitors in the courtroom.

The research also draws attention to the relative lack of direct engagement with the children involved. Perhaps because the average age of the children was only eight, very few had sought - or even knew about - their right to engage representation for themselves. Pursuers tended not to involve their children in the issues partly because they did not want to be accused of putting pressure on them.

There was a mixed response to the idea of a sheriff speaking directly to the children. Where it happened, it appeared to be well-received though most sheriffs shy away from attempting it.

The role of the court reporters commissioned to draw up "independent" child welfare reports is only cursorily explored.

Dr Wilson says: "At the outset we weren't really aware of how central their role is at a child welfare hearing, though the pursuers were only too aware and told us when the reporter came to call it was a very loaded atmosphere where they were afraid to put a foot wrong and tried to second-guess what she or he would look on favourably.

"There was criticism of how little time they spent speaking to the children and then purporting to represent their views in court. I'm not aware of any research into performance evaluation of court reporters, but that might be a fruitful area of enquiry."

Laing and Wilson's research was commissioned by the previous Holyrood administration and a Scottish Government spokesman said it provides a useful snapshot of individual cases and will be considered closely by the Scottish Government as part of its wider work on the reform of Scotland's court system, on the back of the Gill Review that recommends an expansion of family law specialism.

One of the aims was to discover how much contact actions cost and the effect on the participants - but this proved difficult, due to how court and solicitor records are kept."Some (participants] had surprisingly little idea of what their legal bills would be," says Dr Wilson. However, family law solicitor John Fotheringham adds: "If you are not eligible for legal aid and can't afford to employ a solicitor to represent you, do it yourself. Nobody should be put off raising an action to maintain contact with their children on grounds of cost."

• Understanding Child Contact Cases in Scottish Sheriff Courts, Laing and Wilson, University of Newcastle. www.scotland.gov.uk/Publications/2010/12/08114523/0