Together member: Families Need Fathers
UNCRC Article 9 (separation from parents)
Children must not be separated from their parents against their will unless it is in their best interests (for example, if a parent is hurting or neglecting a child). Children whose parents have separated have the right to stay in contact with both parents, unless this could cause them harm.
“For children who do not live with their Dad, or who only live with Dad some of the time, there is often a sense of missing him and wanting him to be more present in their lives. Where parents are having a difficult time getting on, more help is needed so that there is a focus on supporting the child to maintain relationships with both parents.”
What Kind of Scotland? Children’s Parliament (pg. 10).
“Brian and Jane were four and six when their parents separated. When Brian and Jane did see their Dad, they were enjoying being with him but as the time to return to their Mum approached they became anxious.
Although Brian and Jane had contact with their Dad for the first year, this was stopped by their Mum after a dispute about money. The case was in court for three years, and many unfounded allegations about their Dad’s behaviour were made. The children refused to see their Dad. The court appointed a Curator to support the children. Once the allegations against their Dad had been ruled out, the Curator tried to arrange for Brian and Jane to meet him again.
Eventually, there was a “steps of court” reconciliation and Brian and Jane started spending time with their Dad again. Brian and Jane say that they enjoy having both parents attend functions at their schools, and they love spending time with their half-brother in Dad’s new family.”
(Families Need Fathers)
Every year, over 20,000 children in the UK are affected by the breakdown of their parents’ relationship. Although many children remain in full contact with both parents, many children are not kept informed about the separation process, or consulted about which parent they will live with and contact arrangements.
While there are some situations where children should have supervised or no contact with a parent, there is substantial research evidence to show that children will normally benefit from shared care. An international review of 60 research studies shows that joint custody (shared parenting) is linked to better outcomes for children on all the measures of behavioural, emotional, physical and academic wellbeing.
In Scotland, if parents cannot agree on custody arrangements for children after separation, they can try to reach agreement through legal correspondence or family mediation. If this doesn’t work, parents can go to court to seek a decision. Although children and young people are sometimes consulted or involved in these processes, children can be too scared to give an opinion, feel conflicted, feel forced to choose between their parents or may not even be asked for their opinion at all. Even when they give an opinion and it’s taken into account, a lack of feedback can mean that the child remains unaware of this. There can also be long delays in court processes, which mean that children are sometimes cut off from their parent for many months or years. A 2017 appeal court decision – which itself took more than four years to resolve – stated that “the time taken to resolve disputes about contact should be measured not in years but in weeks or, at most, months”.
Recent moves have been made to improve the ways in which children are consulted in court decisions that affect them. Form F9 – a form through which children express their views in family cases – is being revised and children and young people have been actively involved in work to make the form more child-friendly. There have also been positive examples of sheriffs writing directly to children and young people to explain the decisions they have made. The Scottish Government is also considering changes in family law and in the working of the court and other systems which handle disputes about arrangements for children after separation with the review of the Children (Scotland) Act 1995 on the agenda for 2019. All these developments would be strengthened through the incorporation of the UNCRC into Scots law, which would help to ensure a more consistent recognition of children’s right to stay in contact with both parents across legislation, policy and practice.