Grant Or White v White (AP) [2001] ScotCS 48 (6 March 2001)

Grant Or White v White (AP) [2001] ScotCS 48 (6 March 2001)

The Sheriff was entitled, on the facts found, to conclude that it was in the best interests of the child V that the father should maintain personal relations and direct contact with her. The Sheriff Principal erred in law by imposing a legal onus on the applicant. The correct approach is for the court to consider all relevant material and apply the welfare test, having regard to the general principle that contact with an absent parent is normally beneficial, but not treating this as a presumption or onus. The appeal is allowed and the Sheriff's contact order restored.

Citation
[2001] ScotCS 48
Parties
Pursuer and Respondent: Fiona Ann Grant or White; Defender and Minuter: James Lawrence White (A. P.)
Jurisdiction
Scotland
Judgment Date
06 March 2001
Procedural Posture
Appeal From Sheriffdom (family Law Contact Order) / Appeal Judgment From Inner House, Court of Session
Outcome
Appeal allowed; Sheriff's contact order restored.
Legal Topics
Contact Orders, Parental Responsibilities and Rights, Welfare of the Child, Onus of Proof in Contact Applications, Interpretation of Children (scotland) Act 1995
Family Law Child Law Contact Orders Parental Responsibilities and Rights Welfare of the Child Onus of Proof in Contact Applications Interpretation of Children (scotland) Act 1995

Case Brief

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Parties

Fiona Ann Grant or White

Pursuer and Respondent

James Lawrence White (A. P.)

Defender and Minuter

Procedural Posture

Appeal From Sheriffdom (family Law Contact Order) / Appeal Judgment From Inner House, Court of Session

Legal Issues

  1. 1 Whether the Sheriff was entitled to make a contact order in favour of the father under Section 11 of the Children (Scotland) Act 1995
  2. 2 Whether there is a legal onus on the parent seeking contact to prove it is in the child's best interests
  3. 3 Proper approach to the welfare test under Section 11(7)(a) of the 1995 Act

Ratio Decidendi

The Sheriff was entitled, on the facts found, to conclude that it was in the best interests of the child V that the father should maintain personal relations and direct contact with her. The Sheriff Principal erred in law by imposing a legal onus on the applicant. The correct approach is for the court to consider all relevant material and apply the welfare test, having regard to the general principle that contact with an absent parent is normally beneficial, but not treating this as a presumption or onus. The appeal is allowed and the Sheriff's contact order restored.

Court Disposition

Appeal allowed; Sheriff's contact order restored.

Orders

  • The Sheriff's decree granting contact between the father and child V is restored.
  • No further intimation to the child V is required at this stage.