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No test of necessity in refusing contact in family actions

6th December 2016

Morisons’ Family Team acted as Edinburgh agent for the successful respondent mother in the recent Inner House decision of J v M [2016] CSIH 52.

In this difficult and emotionally charged case, the father had been exercising regular contact with his daughter until his contact was suspended by the court following allegations of abuse. The father denied any allegations and the Sheriff did not make a specific finding that the father had abused his daughter. Despite this the Sheriff refused to make an order for contact citing ongoing hostility between the parties’ and their respective families.

The father appealed the Sheriff’s decision to the Sheriff Principal unsuccessfully. He then appealed to the Inner House. It was submitted on his behalf that a separate test of necessity required to be undertaken before contact might be refused and that in the absence of a specific finding of abuse having taken place there was nothing of sufficient weight to overcome the benefit to the child of having contact with her father. The appeal was refused. The Inner House held there was no separate test of necessity and that the sheriff had not erred in his overall approach to the decision-making process; he had carried out a careful balancing act with the child’s welfare as the paramount consideration.

For further information, please contact Rachael MacDonald

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