Father’s appeal for contact with daughter refused

The sheriff had ruled that it was in the child’s “best interests” to refuse contact, and judges in the Inner House of the Court of Session upheld the decision of the sheriff principal, who held that the sheriff had carried out “a careful balancing exercise” and was mindful of the welfare of the child as being the “paramount consideration”.

Lady Smith, Lord Brodie and Lord Malcolm heard that the although they never cohabited, the parties to the action had a relationship which began in February 2009 and ended in March 2010, five days after the birth of their daughter, “F”.

Since then F has lived with her mother “M”, the defender, but in November 2010 her father “J”, the pursuer, raised proceedings seeking an order for contact with F in terms of section 11 of the Children (Scotland) Act 1995.

There followed a series of court orders permitting interim contact, which began under supervision at a child contact centre, and progressed to residential contact.

The pursuer’s application was opposed, and in August 2013 the sheriff allowed parties a proof.

Diets fixed for November 2013 and January 2014 were discharged, and in February 2014 interim contact was suspended because of the allegations.

After more child welfare hearings, a proof fixed for October 2014 was discharged.

Eventually the proof began in December 2014, after which it was adjourned to March 2015 for further evidence, and the adjourned proof took place over various days in March and April 2015.

In a judgment issued in July 2015 the sheriff said the “appalling” relationship between the parties and their families raised questions as to whether “an appropriate climate” for contact could be established.

On the sexual abuse issue, he said the evidence did not “come near the standard that would be required to prove any particular criminal charge beyond reasonable doubt,” but added that there were “reasonable grounds” to suspect that F has been the subject of some aspect of sexual abuse when in her father’s company.

However, the sheriff observed that ultimately this was not the key issue – it was the “welfare” of the five-year-old child – and the sheriff concluded that it was in her best interests to refuse contact.

In the appeal to the sheriff principal the pursuer submitted that: the sheriff failed to take into account a test of necessity; in the absence of a finding in fact that the pursuer sexually abused his daughter, the sheriff was wrong to refuse contact; too much weight was attached to the deteriorating relationship between the parties and the impact of that on the child; and that the sheriff failed to take account of the rights of, and benefit to, the child in having contact with both parents.

However, the appeal was refused in November 2015, after the sheriff principal observed that the sheriff had identified factors which made the step of refusing to make a contact order “necessary and justified in the best interests of the welfare of the child”.

The pursuer’s submissions to the Court of Session were similar to those advanced to the sheriff principal, the main argument being that, in the absence of a finding of abuse, there was nothing of sufficient weight to overcome the benefit to F of continuing to see her father.

It was contended that he did not carry out a proper balancing exercise; gave undue weight to certain factors and insufficient to others; and failed to apply a test of necessity.

But the appeal judges did not accept the submission that the sheriff erred in his overall approach to the decision-making process.

Delivering the opinion of the court, Lord Malcolm said: “Contrary to the submission on behalf of the pursuer, and given the unchallenged findings in fact, we are satisfied that the sheriff’s decision cannot be categorised as ‘unreasonable, inexplicable, unjustifiable, and unnecessary’.

“In our view it falls within the aforesaid ‘generous ambit’ given to the sheriff, who has seen and heard all the witnesses and considered all of the evidence. It is not plainly wrong.

“A specific finding of abuse of F by her father was not a pre-requisite for refusal of his application for contact.”

The judges also observed that while every case turns upon its own facts and circumstances, the reasons for refusal of contact were similar to those upheld by the UK Supreme Court in the 2012 case of NEDB v JEG.

Lord Malcolm added: “After having regard to the general principles referred to earlier, and in agreement with the decision of the sheriff principal, we have come to the view that there is no good reason to interfere with the sheriff’s decision. It follows that the appeal will be refused.”