Voice of the child in private law contact disputes in Scotland

Abstract

This thesis that is supported by the research findings is as follows: In private law contact disputes between parents, greater weight should be attached to the statutory requirement to give children an opportunity to express their views, as well as to the statutory requirement to protect them from abuse, rather than assuming on-going contact with a both parents is essential for the promotion of a child’s welfare. Despite the acquisition of rights by women and children since the late 19th century, it is argued, they remain disempowered within private law legal process as the patria potestas (paternal power) once held by married fathers, has evolved into this assumption that a child’s welfare requires direct, regular contact with his or her biological father – whether the child wants this or not.

Consequently, where children’s views are taken, but they express a view contrary to on-going contact with their biological father, their wishes are often overridden and they may be forced by the court into contact arrangements that distress them. This is particularly problematic as the majority of cases coming before the courts involve serious welfare concerns (including domestic violence and the abuse of substances) and children often have lucid reasons for not wishing to be left under the care and control of their non-resident parent. Yet, these children may sometimes be further victimised by the court system charged with their protection.