A “no contact” order requires substantial justification

A recent Court of Session judgement has overturned Sheriff Court and Sheriff Principal decisions to stop a father’s contact with his daughter, returning the case to a different Sheriff for reconsideration.

The Sheriff had stopped all contact following the breakdown in relationship between the parents.  Lawyers for the mother also argued the father had made various allegations to social workers and medical professionals that his daughter had been ill treated. They argued there was a risk that he would continue to make such allegations. 

Before the original Sheriff Court case, the father had enjoyed substantial contact with his three year old daughter, both before and after separation from the mother. He had cared for his child three days per week while the mother was at work.

In the appeal, it was successfully argued that refusing further contact was a substantial interference in family life.  Lord Eassie in the judgement agreed with the submission that: “where a decision is taken to interfere in an existing, and in practical terms significant, family relationship between a parent and the child by, in substance, bringing that relationship to an end a careful balancing exercise requires to be carried out and factors require to be identified which clearly make that step necessary and justified in the paramount interest of the child.”

This balancing exercise had not been carried out in the original hearing.

The Judges also considered that: “the approach of the sheriff in requiring that the defender identify a “concrete example” of a “discernable benefit” from continuing contact (and in dismissing the defender’s explanation of the benefit of contact by doing normal “father and daughter things”) is an approach which in itself largely sets aside the intrinsic value of the child’s having a relationship with both parents.  Doing “normal father and daughter things” is simply a part of a normal relationship between a female child and her father.”

They also stated “… the sheriff’s conclusion that there was a risk of future emotional harm from the repeated making of spurious complaints respecting the child’s welfare in the future proceeds on relatively slender foundations.”

It was therefore considered “… this is a case in which as an appellate court we should conclude that the sheriff has gone plainly wrong”.

This Inner House decision can be referred to in other cases where contact has been stopped, and we await with interest the affect it may have on future court decisions.  Because this father had been refused legal aid for his appeals, he had lay representation in the Court of Session by Ian Maxwell of Families Need Fathers Scotland, using arguments which had been prepared by his original solicitor Billy Finlayson.