The background to the case is not dissimilar to the contact and residence disputes which child and family lawyers deal with regularly. The child's parents had been in a relationship and separated just over a year after the child's birth. Prior to their separation, the father had cared for his daughter while her mother was at work. He continued to do so after the relationship had ended on 3 days each week. The matter came before the Sheriff in the summer of 2012, following an argument between the parties. The father had refused to return the child to her mother after that argument and she raised court proceedings.
The matter to be determined at the final hearing of the case was whether the father should be granted an order for contact with his daughter. It was no longer in dispute that she would live primarily with her mother. The Sheriff had, however, varied the father's contact during the course of the proceedings. He did so firstly following the breakdown of a mediation session when the mother lost her temper. The Sheriff ordered that all contact should take place in a contact centre. (It is notable that such facilities are generally used in circumstances where the parent exercising contact is unable to properly care for the child or where they pose some risk to the child. Neither of these issues appears to have been a feature of this case. One assumes that the contact centre was thought necessary to avoid the parties having any contact with each other). About seven months later, the Sheriff varied contact to nil following a complaint by the father to the police when he observed that the child had an injury. Her mother had not informed him of the minor injury, which occurred whilst the child was in her care. The father had previously raised concerns about marks on the child with the social work department and medical professionals on three occasions over a period of about one year.
Whilst the Sheriff noted in his final decision that the father had looked after the child adequately both before and after the parties' separation, he held that contact must have a "discernible benefit" to the child. Given that the father could not come up with an example of such a benefit (the Sheriff was not satisfied with the explanation that they did normal father and daughter things together - one wonders what sort of example the Sheriff was looking for), and the risk that the father might make further spurious (in the Sheriff's view) complaints to the social work department or the police in the future, the Sheriff concluded that contact would not be beneficial to a child.
When an order in relation to a child is sought, the Court must be satisfied that it would be better for the child to make the order than not to do so. This is known as the 'no order' principle. In light of his conclusion, Sheriff refused to grant an order for contact.
The father appealed to the Sheriff Principal. He did not have legal representation when the appeal was heard due to a lack of legal aid. The notes of evidence could not be extended, again due to the lack of legal aid cover. This meant that the Sheriff Principal did not have the opportunity to review the evidence led at Proof (final hearing). The Sheriff Principal was satisfied that the Sheriff had properly applied the law. The appeal was refused. The father subsequently appealed to the Inner House of the Court of Session which is the highest civil court in Scotland.
In the reported opinion delivered by Lord Eassie, there is interesting discussion about the question of necessity in the interference in an existing relationship between a parent and their child. Both the Sheriff and the Sheriff Principal had taken the approach that a cessation of contact does not equate to the permanent severing of the link between parent and child. They distinguished the situation from that of permanence proceedings (raised by local authorities) or adoption. It was noted that the father continues to have parental responsibilities and parental rights in respect of the child.
Whilst the decision not to award contact is not the legal 'termination' of the parent/child relationship, the reality is that for the child and her father if there is no contact, how can that relationship really be maintained? Particularly given that the child in question was only 3 years old when the decision was made.
The view of the Inner House was that the greater the interference in the relationship, the more is required to justify that interference. It must be necessary. The decision of the Sheriff was to end the family life enjoyed between the child and her father. They highlighted that termination of contact was indefinite and with no prospect resumption.
This was not a case of an absent or neglectful father but one who had played a significant role in the child's life and had continued to do so after the parties separated. The Inner House considered that the Sheriff had set aside the inherent value of the child having a relationship with both parents. They allowed the father's appeal.
The matter will now return to the Sheriff Court for consideration by a different Sheriff. The case may not be further reported but it would certainly be interesting to see how the current status quo brought about by the Sheriff's interim decision in August 2013 (that there should be no contact) will be approached. The child will be 5 in September and (presumably) has not seen her father for some two years. The indefinite period referred to by the Inner House will not necessarily be made finite by further procedure in the Sheriff Court.