A father’s application for contact with his son in Hungary was refused, the court declining to make any order where the child’s views and the practical realities pointed against it.
Background
The parties married on 9 August 2008, separated in February 2012 and divorced on 11 June 2012. There are two children of the marriage. The dispute concerned contact between the pursuer and the younger child, RS, born 5 September 2011.
The pursuer sought non-residential contact progressing to residential contact in Hungary, together with indirect contact by telephone, video call, electronic message, letter and gifts. The children live in Scotland with the defender.
The decision
Lady Tait found that the children were aware of the parties’ disagreement over funding trips to Hungary and its financial impact on the defender, and that the elder child perceived the regular trips as limiting other family holidays. The defender could be criticised for failing to protect the children from the dispute about legal and financial matters. The court nevertheless rejected any suggestion that her purpose had been to stop contact, that being contrary to the terms of the correspondence between the parties’ solicitors. She had instructed her solicitor to renegotiate contact so that it took place in Hungary twice per year.
After the children’s views were reported, the pursuer was reflective about their criticisms and keen to reassure them, and expressed a willingness to visit them in Scotland. By the time of proof, however, his position was that any contact must take place in Hungary. He explained that by reference to his elderly and frail parents, with whom he wished the children to have a relationship and for whom he has caring responsibilities, and to his fear of flying and lack of a passport. The court described his position on his parents as understandable, and recorded that contact in Scotland had been fully explored in evidence and submissions as an opportunity to unlock the impasse, but that the court was invited to respect his position and order contact in Hungary.
The court sustained the defender’s plea-in-law, repelled the pursuer’s, and refused to make an order. It observed that the defender was willing to encourage contact, that there was potential for informal contact were the children to visit Hungary, and that it remained open to the pursuer to make contact by letter or email provided he did so sensitively, without pressurising the child and in a way which respects the child’s views.
Why this decision matters
Section 11(7) of the Children (Scotland) Act 1995 requires the court not to make an order unless it would be better for the child that the order be made than that none should be made. Where the only order sought is one the child does not want and the practical arrangements are contested, refusal is a real outcome.
A parent who narrows their position during proceedings may find the court holds them to it. Willingness to travel, once withdrawn, removed the option the court had identified as the way through.
Children should be shielded from disputes about legal costs and funding. The criticism of the defender on that point is a caution for resident parents even where their overall conduct is accepted as genuine.
Legal review: Brian Rooney, Managing Partner and Law Society of Scotland Accredited Specialist in Family Law.