About this case:

• Citation:
  [2023] SC KRK 15
• Judgment:
  External link
• Court:
  Sheriff Court

Pursuer DM, who sought contact with son J after his mother, defender JH, moved from Kirkwall to Kilwinning, Ayrshire, argued that he felt rushed by the new arrangements and was unable to effective use the remaining contact time he had. 

The case was heard by Sheriff Iain Nicol at Kirkwall Sheriff Court. S Sutherland appeared for the pursuer and G Moss for the defender. 

Cost of travel

Following the separation of the parties, orders were granted in May 2021 under which J was to live with the defender, who was permitted to relocate from Orkney to Kilwinning. A contact order was made following agreement by the parties permitting the pursuer to have residential contact with J on Orkney every second weekend during term time, with additional weeks in holiday periods, with transport costs to be paid by the defender.

In April 2022 the defender unilaterally reduced the pursuer’s residential contact during term time from every second weekend to approximately once a month. The reason given for this change was that she could not afford to continue paying for flights on the previous timescale. The pursuer averred that, since this change was made, contact had often felt rushed, as he tried to fit more into the period knowing it would be a month until the next one.

A view was expressed by J, who had occasionally suffered from stress-related migraines while travelling to and from Orkney, that he wished to have more frequent contact with his father. However, the defender’s case was that concerns had been expressed by J’s school on how much time he was missing on Friday afternoons, as he was taken out of school early to travel to Orkney, and that it was open to the pursuer to travel to Kilwinning to exercise contact.

The pursuer’s case was that, while he accepted that the defender was facing financial pressures, the cost of travel had not materially changed since the contact order was granted. He felt he had no choice but to go along with the defender’s new proposals, and that they did not allow them appropriate time to relax.

Work in practice

In his decision, Sheriff Nicol observed: “It was readily apparent from the evidence that the parties to this action are loving, caring parents who were both keen for the pursuer to exercise as much contact with J as possible. They both gave their evidence in a measured manner recognising the viewpoint of the other. Issues of credibility and reliability do not arise.” 

Addressing whether there had been a material change of circumstances, he said: “I have no doubt that the parties reached an agreement at that time believing it was an arrangement which best served J’s welfare. But where a relocation takes place, particularly one which involves flights on a frequent basis to take a child from one end of the country to the other, there is always going to be an element of having to see how the arrangements work in practice.” 

He went on to say: “It seems logical to infer that the rushed nature of the contact is at least partly due to the fact the next contact visit will not take place for a month but the proposed variation whereby most contact visits will last longer than one night, and overall reduce in number, would resolve these problems.” 

Sheriff Nicol concluded: “In considering the evidence as a whole I am of the view that J’s welfare is best served by striking a balance between the benefits of extended periods of contact for more than one night at a time and ensuring that contact usually takes place more often than once a month. This is achieved by granting the minute to vary in part.” 

The contact order was therefore varied to provide new specific dates on which the pursuer would have residential contact with J.