Citation Tisdall EKM & Morrison F (2012) Children's Participation in Court Proceedings when Parents Divorce or Separate: Legal Constructions and Lived Experiences. In: Freeman M (ed.) Law and Childhood Studies. Current Legal Issues, 14. Oxford: Oxford University Press, pp. 156-173. https://doi.org/10.1093/acprof%3Aoso/9780199652501.003.0011
Abstract Children's participation generally-and children's participation in court proceedings when their parents divorce or separate specifically-has gained considerable policy and practice prominence. In 1995, the Children (Scotland) Act was passed; it was the most radical, across UK children's legislation, in specifying the requirement for children's participation. The 1995 Act remains the foundation of current Scottish family law, with certain amendments in regards to contested contact. In 1999, the then Scottish Executive commissioned the first study on the relevant provisions. The study analysed all related legislation and guidance, reported case law up until 2001, and undertook a feasibility study on investigating children's experiences of their participation. This chapter explores whether progress has been made since the study was undertaken. After summarizing the relevant legal provisions, an updated review of reported case law is undertaken. It then presents provisional findings from research with children about their participation in the contested area of child contact where there is a history of domestic abuse. The analysis concentrates particularly on the processes of participation and the 'weight' given to children's views, with accompanying consideration of how children and childhood are constructed within these.
Keywords Scotland; Scottish law; children's participation; family law; family court proceedings; case law