In MB v LP, Kirkcaldy Sheriff Court refused a father’s minute to vary an earlier decision denying him contact, holding that the passage of time, the absence of a criminal conviction and the child’s increased age did not amount to a material change of circumstances.
Background
After a proof in December 2023, the court made findings about risk to the child and decided that neither direct nor indirect contact was in her best interests. Supervised contact was considered and rejected. The Sheriff Appeal Court upheld those findings in October 2024, and permission to appeal further was refused in December 2024. The father, who represented himself, then lodged a minute to vary. The child was five years old at the date of the judgment and has had no contact with him since her infancy.
The legal framework
Earlier findings of fact were treated as established and cannot simply be reopened, but the court can reconsider arrangements for a child where there is a welfare reason to do so. That will ordinarily require a material change of circumstances. The welfare of the child is the paramount consideration, and the court makes an order only if doing so is better for the child than making no order, as section 11(7) of the Children (Scotland) Act 1995 provides. The court must also have particular regard to the need to protect the child from abuse.
The decision
The sheriff assessed the child’s current welfare on the evidence at the new proof, treating the earlier findings as established. He accepted that about two and a half years had passed, but held that time alone was not a material change for welfare purposes. Without evidence of rehabilitation, treatment, professional assessment or some other objective change in the factors that gave rise to the risk, there was no basis for concluding that the risk had reduced. The absence of criminal proceedings was known at the original proof and did not undermine civil findings made on the balance of probabilities. Supervised contact had been considered and rejected before, and indirect contact was refused because the child has no relationship with the father and such contact was likely to cause pressure for further progression.
The sheriff also considered whether to obtain the child’s views, which section 11(7) requires so far as practicable. In the exceptional circumstances, it was not practicable. Age alone was not the reason: the sheriff took account of the child’s particular circumstances, including that she has no relationship with the father, and the serious distress that obtaining an informed view would be likely to cause. The sheriff held that refusing contact was a proportionate interference with the right to respect for family life under Article 8 of the European Convention on Human Rights. The minute was refused, and the sheriff noted that a future application remained possible if materially different circumstances arose.
What it means in practice
- A parent who has lost a contact case should not expect a minute to vary to succeed on the passage of time, or on the absence of a criminal conviction, alone.
- The court looks for a welfare reason, such as evidence of rehabilitation or an objective change in the factors that created the risk.
- The duty to give a child the opportunity to express a view is subject to practicability, which can take account of the harm that obtaining the view would cause.
Every case turns on its own facts. If you are considering a change to existing contact arrangements, please contact us to discuss your position.