K.A. v. K.S.

[2] The parties to the appeal are the father and mother of the child J. They separated in July 2010. The pursuer has not seen J since then. After proof, the sheriff determined that it was in the best interests of J that contact with the pursuer be reinstated. The detail of any contact arrangements were to be determined at a child welfare hearing assigned for 17 October 2013. However, with the subsequent marking of an appeal, that hearing has yet to take place.

[3] Ms Harrison, for the defender, advanced three grounds of appeal all in terms of the note of appeal. She also tendered written submissions for the benefit of the court. Those written submissions are appended hereto. The first ground of appeal was brought to criticise the terms of paragraph [99] in the sheriff's note. (It should be noted that the note per incuriam appears to proceed directly from paragraph [88] to [99] all as set out on page 18).

"So far as the question of contact is concerned, I consider that the function of the Court is to weigh-up all the relevant factors in a context where the parental link is one intrinsically favouring contact (without need for further proof of that benefit) and deciding (sic.) whether overall the balance comes down in favour of the view that contact is in the best interests of the child and so likely to benefit his welfare."

[7] It was maintained, on behalf of the pursuer, that the sheriff had failed to consider, for instance, the atmosphere of hostility which would prevail at handover, should contact take place, the continued conflict between the parties and the potential emotional and psychological detriment to the child by being exposed to such conflict. The sheriff had failed to deal with any of these factors in articulating his treatment of the balancing exercise.

[8] More acutely, Ms Harrison submitted that the child's best interests had not been weighed in the balance by the sheriff. Indeed, it appeared from the judgment that the sheriff had failed to articulate a considered view as to what material in the evidence actually led him to conclude that the reinstatement of contact with the pursuer would serve the best interests of the child.