Earlier this year, The Domestic Abuse (Scot land) Bill was passed by the Scottish Parliament. The historic vote took place at the beginning of February – a vote which only had one dissenting voice (later discovered to be a mistakenly pressed button due to missing reading glasses!) and became the Domestic Abuse (Scotland) Act 2018.
The Act received Royal Assent on 9 March and is expected to come into force in later this year or in early 2019.
The Act has been described as creating a “gold standard” of domestic abuse legislation and is supported by Police Scotland, the Crown Office and the Procurator Fiscal’s Office.
As a family law practitioner, the Act’s impact across Scotland will be profound and far-reaching. I often have cause to work closely with people who have been in abusive relationships and whilst the 2018 Act will undoubtedly have significance on how abusers are prosecuted in the criminal courts, it can also be expected to have implications on how cases of child contact and residence are dealt with in the civil courts.
When dealing with contact and residence disputes, the welfare of the child is the paramount consideration of the court.
Civil courts have been reluctant to give weight to arguments of emotional abuse against a parent when determining contact arrangements, particularly where children have not been directly involved in the abuse. Many people fear fleeing a controlling relationship will result in them being “penalised” by the courts in residence cases for not having permanent accommodation. Refuge accommodation or temporary accommodation they find may be of a “lower” standard than the original home; that might result in the children changing schools or sharing a bedroom. This can be problematic where the court favours maintenance of the “status quo”, especially where there has been no conviction of domestic abuse and the status quo appears to be superior in terms of the child’s needs.
The 2018 Act recognises the impact emotional abuse against a parent can have on a child. However, children are often much more emotionally aware than they are given credit for.
Research shows that coercive behaviour in a household poses a real risk to development. For example, if the father isolates the mother from family and friends (or vice versa), children are also likely to be isolated. Children can be manipulated and confused and may come to blame the parent suffering the abuse without fully realising what is happening.
Behaviour and choices in the household affect and disrupt children’s lives. Within the family, coercive control is a “parenting choice” on the part of the perpetrator. The belief that it remains in the child’s best interest to reside, or even to have extensive contact with a parent who has emotionally abused another may be capable of challenge on this basis.
There is hope that the 2018 Act will open the door for further protection for children against exposure to abusive parents. Recognising the impact emotional abuse can have on a child is the first step to a better understanding of the how relationships should be maintained after separation.
Moreover, in addition to physical or sexual abuse, the 2018 Act specifically recognises coercive and controlling behaviour of partners/ex-partners, including emotional and psychological abuse as a criminal offence.
A person will commit an offence if “a reasonable person would consider the course of behaviour to be likely to cause their partner or ex-partner to suffer physical or psychological harm” and that either they intended to cause their partner or ex-partner to suffer physical or psychological harm or that they were reckless to cause their partner or ex-partner to suffer physical or psychological harm.
The new law covers spouses, civil partners, cohabitants and people in intimate personal relationships who do not live together.
The Act specifically identifies abusive behaviour as behaviour which is: violent, threatening or intimidating; making a partner or ex-partner dependent or subordinate; isolating a partner or ex-partner; controlling, regulating or monitoring a partner or ex-partner’s day-to-day activities; depriving a partner or ex-partner of, or restricting their freedom; and frightening, humiliating, degrading or punishing a partner or ex-partner.
Any offences will be aggravated if a child is involved, meaning the potential for increased severity of sentencing.
Sophie Pike, family law solicitor, Balfour + Manson