Peer-reviewed article
Challenging undue influence? Rethinking children’s participation in contested child contact
E. Kay M. Tisdall, Fiona Morrison, Judy Warburton ·
Summary
Written by AI, not yet AICS's view · claude-haiku-4-5-20251001This paper examines why children's participation rights are not fully realised in family court cases involving contested child contact, despite strong legal protections in Scotland. The research uses interviews with legal professionals and analysis of court cases to identify barriers preventing children from having their views heard and weighted in decisions about contact with parents. The authors develop new concepts—'the influenced child' and 'the influential child'—to explain how children's participation rights are restricted in practice.
Key points
- Despite ratification of the UN Convention on the Rights of the Child, children's views are often not heard or given due weight in contested parent-child contact cases
- Scotland has strong legal safeguards and mechanisms to support children's participation rights, yet barriers remain on the ground
- The paper draws on empirical research with legal professionals and analysis of reported case law
- New conceptual frameworks are offered to understand how children's participation rights are restricted through notions of 'influence'
- There is a gap between progressive legislation and the realisation of children's participation rights in family law practice
Limitations
This paper provides conceptual and qualitative analysis rather than empirical measurement of outcomes for children. It does not evaluate the effectiveness of specific interventions to improve children's participation, but rather identifies barriers to existing rights being realised.
Abstract
Despite the widespread ratification of the United Nations Convention on the Rights of the Child, children continue to struggle to have their participation rights recognised and supported. This is evident within family law, where despite sometimes progressive and strong legislation, children’s views are often not heard, nor given due weight, when parent-child contact is contested within the courts. This paper explores barriers to children’s participation rights being realised. It uses Scotland as the example, due to its strong legal safeguards and mechanisms that aim to support participation rights. The paper draws on recent empirical research with legal professionals, combined with an analysis of reported case law and relevant literature, to explore the barriers ‘on the ground’ for children’s participation rights. Through our analysis, we offer new ways to conceptualise the notion of influence in children’s participation rights in family actions. We offer the conceptual devices of ‘the influenced child’ and ‘the influential child’ to elucidate how children’s participation rights are restricted.