M AGAINST C [2021] ScotCS CSIH_14 (23 February 2021)

M AGAINST C [2021] ScotCS CSIH_14 (23 February 2021)

The test of 'practicability' in section 11(7)(b) of the Children (Scotland) Act 1995 must be interpreted in light of the paramountcy of the child's welfare. The court is not required to seek the child's views if doing so would cause material harm to the child. The sheriff failed to apply the correct test, justifying the appeal sheriff's decision to remit the matter.

Citation
[2021] ScotCS CSIH_14
Parties
Pursuer and Respondent: M; Defender and Appellant: C
Jurisdiction
Scotland
Judgment Date
23 February 2021
Procedural Posture
Appeal / Opinion of the Court on Appeal From Sheriff Appeal Court
Outcome
Appeal refused
Legal Topics
Contact Orders, Children's Views, Welfare of the Child, Interpretation of 'practicable', Section 11 Children (scotland) Act 1995
Family Law Child Law Contact Orders Children's Views Welfare of the Child Interpretation of 'practicable' Section 11 Children (scotland) Act 1995

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Parties

M

Pursuer and Respondent

C

Defender and Appellant

Procedural Posture

Appeal / Opinion of the Court on Appeal From Sheriff Appeal Court

Legal Issues

  1. 1 Whether the court must always seek the views of a child before making an order under section 11(1) of the Children (Scotland) Act 1995
  2. 2 How the term 'practicable' in section 11(7)(b) should be interpreted, especially where seeking the child's views may be harmful

Ratio Decidendi

The test of 'practicability' in section 11(7)(b) of the Children (Scotland) Act 1995 must be interpreted in light of the paramountcy of the child's welfare. The court is not required to seek the child's views if doing so would cause material harm to the child. The sheriff failed to apply the correct test, justifying the appeal sheriff's decision to remit the matter.

Court Disposition

Appeal refused

Orders

  • Matter remitted to the sheriff for reconsideration applying the correct test