A plea from Scotland: preserving access to courts in private law child contact disputes [2013] CFLQ 294

Keywords: Child contact - access to justice - legal aid - domestic abuse - views of the child

This paper is set against the background that legal aid for family actions has recently been removed in England and Wales in almost all instances except where there is recent evidence of domestic or child abuse, and against the background that the handling of family cases is also under review in Scotland. The author presents findings from her recent Scottish court-based research which illustrate the importance of access to the courts for parents who have welfare concerns for their child when in the care of the other parent - even though these concerns may not generate documentary evidence in advance of court action. Rather the court action itself provides the opportunity for investigations into all the circumstances of the child, including the child's views on contact, often leading to evidence of abuse becoming available. Courts are also unique in enabling protective orders to be put in place and the limiting of the exercise of parental rights - without which brute force alone might determine contact outcomes. The article therefore concludes that blocking access to the courts by the removal of legal aid will mean increasing numbers of children are forced into contact that distresses them. The article includes a consideration of the pre-existing differences in the processing of child contact disputes in England and Wales and in Scotland which may, in part, underpin the pronounced differences in the response to the need for family justice reform in the two jurisdictions.

The full version of this article appears in issue 3 of 2013 of Child and Family Law Quarterly.