F.A.G. OR W. v. J.L.W. and K.H.W. [1999] ScotSC 23 (2nd August, 1999)

F.A.G. OR W. v. J.L.W. and K.H.W. [1999] ScotSC 23 (2nd August, 1999)

The Children (Scotland) Act 1995 does not create a legal presumption in favour of contact for a parent with parental responsibilities and rights. The test remains as set out in Sanderson v. McManus: the applicant must show that contact is in the best interests of the child. The sheriff erred in law by applying a presumption in favour of contact.

Citation
[1999] ScotSC 23
Parties
Pursuer and Respondent: F. A. G. or W; Defender and Minuter: J. L. W; Third Party: K. H. W
Jurisdiction
Scotland
Procedural Posture
Family Law Appeal / Appeal Against Interlocutor (contact Order)
Outcome
Appeal allowed; sheriff's interlocutor recalled; contact order refused; no expenses due to or by either party for the appeal.
Legal Topics
Child Contact Orders, Parental Responsibilities and Rights, Welfare of the Child, Onus of Proof in Contact Applications
Family Law Child Law Child Contact Orders Parental Responsibilities and Rights Welfare of the Child Onus of Proof in Contact Applications

Case Brief

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Parties

F. A. G. or W

Pursuer and Respondent

J. L. W

Defender and Minuter

K. H. W

Third Party

Procedural Posture

Family Law Appeal / Appeal Against Interlocutor (contact Order)

Legal Issues

  1. 1 Whether the Children (Scotland) Act 1995 creates a presumption in favour of contact for a parent with parental responsibilities and rights
  2. 2 Whether the onus is on the parent seeking contact to prove it is in the child's welfare, or on the other parent to prove it is not

Ratio Decidendi

The Children (Scotland) Act 1995 does not create a legal presumption in favour of contact for a parent with parental responsibilities and rights. The test remains as set out in Sanderson v. McManus: the applicant must show that contact is in the best interests of the child. The sheriff erred in law by applying a presumption in favour of contact.

Court Disposition

Appeal allowed; sheriff's interlocutor recalled; contact order refused; no expenses due to or by either party for the appeal.

Orders

  • Appeal allowed
  • Interlocutor of 24 May recalled