The Children (Scotland) Bill

Many key amendments of The Children (Scotland) Bill will be considered at the stage three debate towards the end of the summer. Two issues which may be discussed are the creation of a presumption of shared parenting, in law, and a change in the name of residence and contact orders. Scotland is moving towards an equal society, the presumption, on the face of it, sounds fair and reasonable. In an ideal world, when two parents separate, there would be no hostility. The parents would set their relationship difficulties to one side, and they would co-parent amicably, for the sake of the child.

Parental Alienation

Sadly, for the majority of contact and residence cases in the family courts, there is hostility, and it is often not implacable. Most of these cases contain allegations of domestic abuse which often face counterclaims of parental alienation (PA), a tactical weapon used in courtrooms in various developed countries, including Scotland. The effect of the PA counterclaim should be of grave concern to those who strive to uphold the value of child rights and human rights. A mother is often disbelieved, the violence she experienced is minimised and the evidence of abuse is set to one side. The child re-enters into unsafe contact, and both mother and child are traumatised by the process.

The Association of Family and Conciliation Courts (AFCC) is the networking association of family court professionals, and they also provide training. Their members include judges, PA psychologists, mediators, PA lawyers and members of fathers' rights groups. The AFCC has a strong presence in Scotland. The association has made significant advances in recent years, as have the efforts of various fathers’ rights groups. A 'pro contact culture' has emerged in the family courts as a result. The proponents of parental alienation in Scotland (now proponents of shared parenting) must recognise the trauma advanced on healthy, safe mothers and children who are facing court proceedings with a very violent or psychologically unsafe parent.

Presumptions

The Scottish family court system could do more to protect victims of domestic abuse and their children. The devastating and sometimes fatal outcomes, in countries where parental alienation is promoted, are now firmly in the spotlight. The presumptions of contact and shared parenting are now causes for concern. The Ministry Of Justice has recently announced a major overhaul of the family court system (England & Wales) and plans to urgently review the presumption of parental involvement to address its detrimental effects.

Earlier this month in Australia, a private members bill was introduced to parliament to overturn the presumption of equal shared parental responsibility. In the USA Professor Joan Meier (domestic violence lawyers and expert) has revealed the severe extent of the parental alienation problem through her groundbreaking research spanning ten years. She is working closely with lawmakers to tighten up the custody laws so that cross-claims of alienation no longer extinguish claims of abuse, and so that the abuse is considered first and foremost.

Scotland

Scotland must take note and pause for thought. To create a presumption of shared parenting would be unwise. For once a presumption is in law, it creates an expectation that shared parenting will ensue. All safe, healthy parents deserve an abundance of quality parenting time with their children, but it cannot be done at the expense of a child's safety. All presumptions should be ones which prioritise the child's interests, not the adult's interests. The renaming of residence and contact orders moves towards the notion of shared parenting, therefore this should be considered in tandem, for the same reasons.

In Scotland, we are a leader in many things; we are a humane nation and one that respects child rights and human rights, hence the creation of the bill in the first place. If we don’t consider the domestic abuse aspect first then we run the risk of being the country to put the rights of an abusive parent before the rights of the child. In our pursuit for progression and equality, MSP’s must be certain of where the inequality lies, if the purpose of the bill is to enable better and safer outcomes for children.