“Of Course, I know what domestic abuse is!”: Legal professionals and their understandings of Domestic Abuse

Scotland has been engaged in an ambitious strategy to tackle domestic abuse. There have been some significant developments: the early adoption of a policy definition that focuses on ‘abuse’ rather than violence (Scottish Executive 2000; 2003); a gendered understanding of domestic abuse as a cause and consequence of gender inequalities (Scottish Executive 2000), and; the implementation of a raft of policy and practice responses (Brooks-Hay et al 2018), including the introduction of specialist domestic abuse courts (Reid Howie 2007) and specialist guidance and training for  prosecutors. Most recently, the Domestic Abuse (Scotland) Act 2018 (DA(S)A), introduced a statutory offence of domestic abuse aimed at properly reflecting the experience of victims of long-term abuse and ensuring more effective investigation and prosecution (Burman & Brooks-Hay 2018; Cairns 2017; Scott 2018).

The international research evidence is clear that domestic abuse is harmful to children and that the harm is not limited to situations where children ‘witness’ domestic abuse but rather that they actively experience domestic abuse with the non-abusing parent (Hester 2000; Mullender 2004; Radford et al 2013; Campo 2015; Katz 2016). There is also recognition in Scotland that domestic abuse adversely affects children (Callaghan et al 2018) and DA(S)A introduced a sentencing aggravator where abusive behaviour is directed towards a child, is witnessed by a child, involves a child in the commission of the offence or is likely to adversely affect a child. This is the only UK legislation with a statutory aggravator to reflect the harm that can be caused to children growing up in an environment where domestic abuse takes place.  DA(S)A also stipulated that courts would impose Non-Harassment Orders (NHOs) unless the court could explain why victims – including children – would be safe without them.

Scotland has also seen considerable reform in the context of child law, family law and children’s rights, with evidence of an ambitious and innovative strategy in pursuit of a civil law framework suitable for contemporary families. Domestic abuse was first addressed within family law by the introduction of statutory occupancy rights in the matrimonial or family home (Matrimonial Homes (Family Protection) (Scotland) Act 1981) and, more recently, highlighted within the context of child law, including ongoing contact between parents and children (Children (Scotland) Act 1995, as amended). The issue of child contact with the non-resident parent has gained policy prominence in Scotland in recent years, amidst debates about whether, in the context of domestic abuse, contact with an abusive parent is in the “best interests” of the child.

Among concerns identified by a Scottish Executive (2004) consultation, Family Matters: Improving Family Law in Scotland, was a need to strengthen protection against domestic abuse. During the passage of the Family Law (Scotland) Bill, a statutory presumption against contact in cases involving domestic abuse was initially proposed, but then opposed on the basis that it added little to the existing legislated ‘welfare test’. Following an intervention by Scottish Women’s Aid that domestic abuse was not being considered in child contact cases, section 24 of the Family Law (Scotland) 2006 amended the Children (Scotland) Act 1995, introducing new “abuse provisions” directing the court, in assessing whether or not to make an order for contact, to have regard to particular matters concerned with the need to protect the child from domestic abuse.

The Scottish Government’s (2019a) consultation on the 1995 Act highlighted that, in practice, domestic abuse continued to be disregarded in court decisions relating to contact and the welfare of the child. The Family Justice Modernisation Strategy (Scottish Government 2019b) set out a commitment to introduce new measures for domestic abuse victims, including ensuring civil courts are provided with information on domestic abuse and improving interaction between criminal and civil courts, in the context of domestic abuse. 

The provisions of the 1995 Act, as inserted by the Family Law (Scotland) 2006, provide the legislative basis for defining domestic abuse in contact cases in Scotland. While a significant reform, they have attracted relatively little attention in published judgments (Morrison 2014) and limited academic comment (Whitecross 2017). With some exceptions (Wilson & Laing 2010; Morrison 2014) little is known about the nature of child contact applications or how child contact proceedings work in practice. The low volume of child contact cases which proceed to proof in Scotland means that there are few reported judgments on which to base analysis of how domestic abuse is understood by the civil courts. Little is known of the extent to which the treatment of domestic abuse in the civil courts reflects criminal practice, or importantly how legal professionals (lawyers, advocates, sheriffs and judges) understand the dynamics of domestic abuse. This will be the focus of the proposed project.

Academic Qualifications:

A first degree (at least a 2.1) ideally in Law or appropriate Social Science with a good fundamental knowledge of social theory and research methodologies.

 

English Language Requirement:

IELTS score must be at least 6.5 (with no less than 6.0 in each of the four components), Ither equivalent qualifications will be accepted. Full details of the University’s policy are available online.

Essential Attributes:

·        Experience of fundamental knowledge

·        Competent in conducting independent research

·        Knowledge of law or social science

·        Good written and oral communication skills

·        Strong motivation, with evidence of independent research skills relevant to the project

·        Good time management

Desirable Attributes:

The focus of the study is Scotland and the wider UK. An understanding of the legal system and profession in Scotland would be useful.