Manipulation and Domestic Abuse in Contested Contact – Threats to Children's Participation Rights

• DOI: http://doi.org/10.1111/fcre.12479
• Author: Jane E. M. Callaghan,Fiona Morrison,E. Kay M. Tisdall
• Date: 01 April 2020
• Published date: 01 April 2020

MANIPULATION AND DOMESTIC ABUSE IN CONTESTED

CONTACT –THREATS TO CHILDREN’S PARTICIPATION RIGHTS

Fiona Morrison, E. Kay M. Tisdall, and Jane E. M. Callaghan

The United Nations Convention on the Rights of the Child has catalysed numerous jurisdictions to introduce newlegal provi-

sions to support children’s participation rights when child contact is contested. Despite this, children’s participation is fre-

quently limited in practice, especially in contexts where children are perceived as vulnerable to a parent’s manipulation, even

if there are allegations of domestic abuse. While “resist and refusal dynamics”have yet to become mainstream terms in Scot-

tish family law, “manipulation”has become a common concern in cases of contested contact. Drawing on a Scottish empiri-

cal study on contested child contact in circumstances of domestic abuse, we interrogate the implications that the concept of

manipulation has for children’s participation rights. The study involved separate in-depth interviews with 18 children and

their 16 mothers. Findings point to concerns about upholding children’s participation rights, particularly in cases where chil-

dren were depicted as “influenced”or “manipulated.”Through our analysis, we disentangle the problems professionals have

when concerns about child manipulation and domestic abuse intersect. We argue that, when combined, allegations of manip-

ulation and domestic abuse present a significant and serious risk to children’s participation rights. We find the legal construc-

tion of the child’s views as separate from the parental dispute to have unintended and serious consequences for children’s

participation rights. We offer ways in which law and practice may evolve to ensure children’s participation rights in these

contexts are both implemented and upheld.

Practitioner’sKey Points:

The combination of allegations of manipulation and domestic abuse present a significant and serious risk to children’s

participation rights in contested child contact

A legal construction of the child’s views as separate to the parental dispute to have unintended and serious conse-

quences for children’s participation rights

Radical reform in family law and practice is necessary to make disputes about child contact centered around the

child, rather than on parental responsibilities and rights.

Keywords: Alienation; Child Contact; Child Rights; Domestic Abuse; Family Law; Manipulation; Participation; Visitation.

Children’s rights to par ticipate in decisions that affect their lives is established in the UN Con-

vention on the Rights of the Child (“UNCRC”). These rights are further assured in primary legisla-

tion for Scottish family law, the Children (Scotland) Act 1995, as well as in the accompanying

procedures and mechanisms. Despite this progressive platform, there is growing recognition in civic

advocacy, professional commentary and research (e.g., Mackay, 2013; Morrison, Tisdall, Reid, &

Jones, 2013; Tisdall, 2016) that children’s participation rights are not adequately assured in practice.

At the time of writing, a large-scale consultation has been undertaken on family law by the Scottish

Government,

1

which documents the current failings when allegations of domestic abuse and paren-

tal manipulation intersect with contested child contact (the Scottish term for “access”or “visitation”

with a parent who does not have primary care of a child). In this article, we draw from these recent

discussions in Scottish family law and an empirical study on contested child contact in circum-

stances of domestic abuse to interrogate the implications of the concept “manipulation”for chil-

dren’s participation rights. Our findings raise ongoing questions about children’s rights to participate

generally, and particularly if children are seen to be influenced unduly or manipulated by one or

Correspondence: f.morrison@stir.ac.uk

This research was funded by ESRC Grant Number: ES/G028796/1.

FAMILY COURT REVIEW, Vol. 58 No. 2, April 2020 403–416

© 2020 Association of Family and Conciliation Courts