A Judge’s strongly worded advice for separated parents

Author: Paul Neilly
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A senior family law judge, Lord Brailsford recently decided a child contact case concerning a nine year old boy, which had been going on for some seven years.

The father in this case is from Tunisia, but has lived in Scotland for more than ten years and is settled here with a steady job. The mother, who is Scottish, met him in Edinburgh in 2004 and they were married in Tunisia in 2006. Their son was born in 2007. The couple separated in 2008 and divorced in 2013. The boy’s Dad had not seen him for about 3 years when Lord Brailsford made his decision. The boy’s Mum had insisted that contact wasn’t in her son’s best interest and the boy was adamant that he did not want to see his father.

The mother was scared that the boy’s father planned to abduct the child and take him to Tunisia, from where it would be very hard to bring him back to Scotland.  Lord Brailsford in connection with the mother’s views concluded that her “expression of fear of abduction of her son is genuinely held. I do, however, go further and express the view that even if that belief is genuinely held there is no objective or rational basis for it at the present time.” He then set out various protective measures such as passport surrender and Port Alert Orders which could prevent any such abduction.

Lord Brailsford considered statements by the child in the past that he did not want to see his father but he also took into account expert evidence of a child psychologist Professor Tommy MacKay who told the court that he believed the boy’s views about contact with his father to be genuine “but they are not independently formed views.”  He stated that “The child had clear knowledge of his mother’s negative views towards his father.” The psychologist understood that the child would be extremely concerned that any acceptance of his father by him would cause upset to his mother and this would be something that he would be anxious to avoid doing.

Professor MacKay further cited evidence that children “who do not have contact with both parents have, as a group , a greater propensity to experience difficulties academically, psychologically, emotionally and in future relationships in later life”.

Lord Brailsford clearly placed some weight on this evidence saying “I would be reluctant to impose direct contact upon a child who did not wish it but for the overriding requirement to have regard to his best interests which must in my opinion, include his psycho-social development. I have to weigh the potential for adverse effects in later life against a child’s currently expressed opinion against contact.”

Lord Brailsford decided that it was in the best interests of the boy for direct contact with his father to be re-established. He carefully considered a plan and made an order for contact by Skype or similar first of all, for three or four sessions after that and then some supervised face to face contact to take place fortnightly for around three months and he urged both parents to put the past conflict behind them in the greater interest of the child’s welfare. If all that was successful then the Dad could go back to having regular unsupervised contact.

Lord Brailsford also commented that what was causing the child stress was that “he felt the need to please his mother and did this by expressing views which were hostile to his father and to contact with his father. This is a very serious matter which has the potential both to cause harm to the child and to affect the chance of future contact operating successfully. It is regretfully, in my experience, a not uncommon feature of contact disputes, particularly those of an intractable nature.”

Lord Braillsford gave this advice to separated parents “In my opinion the best and possibly the only, way to address this lies in the hands of the parents. They have in my opinion an overriding duty to put aside their antipathy, distrust or resentment held towards a former spouse in order to ensure that their child is not exposed to the sort of risks identified by Professor MacKay in his evidence.”

This is strongly worded advice and separated parents should take it on board.

If you would like more information or advice about the issues raised in this case or about contact arrangements generally please get in touch with our family law team who will provide you with a guiding hand to help you best protect the welfare of your children.

About Paul Neilly

Paul’s first degree was a BA Honours in Financial Services following which he spent five years working for a large insurance company as a pensions specialist. He then completed his law degree at the University of Strathclyde and Diploma in Legal Practice at the Glasgow Graduate School of Law. Paul subsequently joined Mitchells Roberton as a trainee in July 2006 and qualified as a solicitor in September 2008. Paul was made Partner in July 2015. Principally concerned with civil litigation, Paul specialises in contract disputes, landlord and tenant issues (commercial and residential), debt recovery, family law, employment law and personal injury claims. He also handles cases involving Adults with Incapacity. Paul regularly appears in the Sheriff Courts throughout Scotland and has experience of appearing before Licensing Boards and instructing matters in the Court of Session. Being a general civil litigator Paul is keenly aware of the need to keep step with developments in the law and legal education. This led Paul to join the committee of TANQ, the Trainee and Newly Qualified Society of the Royal Faculty of Procurators in Glasgow, in which role Paul currently organises seminars and networking events for its members. Paul is married with a young son and daughter. In his spare time he enjoys cooking, reading and watching sport, particularly following the exploits of the national football and rugby teams, although this is more of a vocation than a source of enjoyment. Email: pdn@mitchells-roberton.co.uk

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