Recent decisions in the cases of AH v CH [2016] CSOH 152 & J v M [2016] CSIH 52 revealed a disparity in judgments, as each case turned on its unique circumstances. AV v CH concerned a father seeking unsupervised direct contact with his child despite the mother’s fears of child abduction, while J v M concerned a father seeking contact in the face of allegations against of sexual abuse against the child levied against him. The first resulted in a decision to allow unsupervised direct contact (despite the child expressing a preference for no contact), while in the second the Sheriff’s decision to refuse contact was upheld by the Inner House of the Court of Session, where there were reasonable grounds to suspect ‘…some aspect of sexual abuse.’
Every case involving children necessarily demands a delicate approach and careful consideration of the whole circumstances. In AH v CH, the mother’s fear of abduction was considered to be genuinely, though perhaps unreasonably, held. In J v M, the concrete allegations of abuse by the father ‘provided a sound basis for a prediction of deep ongoing hostility’ between the families of mother and father. This distinguished from AH v CH insofar as the allegations were ‘…not a ploy or pretext for shutting out the Pursuer [the father]. It is hostility based on strongly held beliefs.’
Moreover, While AH v CH revolved around conflict between mother and father, J v M involved extensive hostilities between the respective families of mother and father, creating a situation that the Sheriff considered the child would be unable to cope with.
It might be said that the child in AH v CH succumbed to so-called ‘parental alienation syndrome’, in which the child adopts the views and attitudes of one parent against another. If an accurate summation of the child’s experience in that case, this implies a fine line between what is and is not in the child’s best interests. If a child’s perception of one parent has been diminished principally as a consequence of the imbalance of parental influence/parental bias, the courts can rectify the imbalances by restoring the parental rights and responsibilities of this disenfranchised parent, while acting in the child’s best interests. If on the other hand the child’s confidence in a parent is diminished by external stresses – such as hostilities between maternal and paternal families, or abuse suffered at the hands of a parent – the court’s overwhelming, clear-cut duty is to protectively safeguard the child’s best interests, even to the exclusion of contact with a parent.
If you would like to discuss your circumstances in relation to a child, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk