Together member: Scottish Women’s Aid

UNCRC Article 19 (protection from violence)

Children and young people must be protected from all forms of violence. This includes physical, verbal and mental abuse, including exposure to domestic abuse.

“When the child is met with neglect or violence, or any of the other negative experiences which children identify, this is not ‘just adults behaving badly’, these acts are infringements of rights.”

‘What Kind of Scotland?’ (Children’s Parliament)

Across the UK, an estimated 1 in 5 children have been exposed to domestic abuse. However, most cases go unreported, meaning that available figures do not reveal the true extent of the problem. In Scotland, domestic abuse is the third most common concern identified at child protection case conferences and is the third most common ground for referral to the Children’s Hearing system.

The effects of experiencing domestic abuse are significant and varied, interfering with the enjoyment of a range of rights under the UNCRC. Evidence suggests that seeing and hearing abuse of a parent may be as harmful to children as directly suffering the abuse themselves. Domestic abuse perpetrators can also undermine the non-abusing parent’s (usually the mother) capacity to take care of their children and deliberately isolate the non-abusing parent and child. Children living in a household where domestic abuse is taking place are also at increased risk of child abuse; research indicates that domestic abuse is the most common context for child abuse.

The UNCRC is clear that all children and young people have a right to express their views and have these taken into account (Article 12). However, when it comes to child contact proceedings, children and young people experiencing domestic abuse feel this right is not being upheld. Research from Scottish Women’s Aid found that children and young people say their views on contact with the perpetrator were either not being heard or not being given any weight. This reflects research highlighting that 55% of children involved in domestic abuse-related contact proceedings do not want any contact with their non-resident parent. The study highlighted significant variation in the weight attached to children and young people’s views, with 34% children facing a contact outcome that bore no resemblance to the view they had expressed.

“One of the most important lessons for agencies involved is listening to children and young people. No-one asked me what I thought when I was sent to live with my dad. It was just wrong. It’s important that younger children, as well as older ones, are asked what they think.”

Georgia Rose, age 14

Recent developments have sought to ensure that the impact of domestic abuse on children is better recognised and tackled. Children and young people with lived experience of domestic abuse made recommendations on improving court ordered contact in Power Up/Power Down, which was taken into account by the Scottish Government through its consultation on the Children (Scotland) Act 1995. The Scottish Government has also committed to introducing a family law bill to further ensure that children’s best interests are at the centre of contact and residence cases.

Following calls from children’s rights and women’s rights organisations, the Domestic Abuse (Scotland) Act 2018 specifically recognises the harm that can be caused to children witnessing abuse. The Act creates a statutory aggravation which applies when the perpetrator involves a child in carrying out the abuse, where a child sees, hears or is present when the abuse takes place or where a reasonable person would consider it likely that a child living with the victim or perpetrator would be adversely affected by the abuse. This aggravation must be taken into account when sentencing the perpetrator. However, the Act stopped short of creating a parallel offence against children, alongside the offence against the adult. Ensuring children’s full legal protection from emotional harm and abuse, including in the context of domestic abuse, was further explored through Scottish Government’s consultation on the Children and Young Persons (Scotland) Act 1937 which closed in November 2018.

The above developments could all be strengthened through the incorporation of the UNCRC into Scots law. This would help provide the additional push needed to ensure that children affected by domestic abuse are not overlooked, and are provided with the well-resourced and specialist support services they need, upholding children’s right to recovery under Article 39. Importantly, children themselves may feel more empowered to claim their rights, with incorporation of Article 12 (right to be heard) helping to ensure that children and young people are fully involved in all decisions affecting their lives.