Refusal of Direct and Indirect Parental Contact Where a 14‑Year‑Old’s Views Are Found Genuinely Held and Welfare Is Not Improved by Compulsion

1) Introduction

ZS v TS ([2026] CSOH 27, Outer House, Court of Session, Lady Tait, 24 March 2026) concerned whether the pursuer (father), resident in Hungary, should obtain a contact order in respect of the parties’ younger child RS (born 5 September 2011; aged 14 at proof), who lives in Scotland with the defender (mother). The father sought non-residential contact progressing to residential contact in Hungary, together with extensive indirect contact (calls, video calls, electronic messages, letters, gifts).

The parents are Hungarian citizens; the mother and children also hold British citizenship. Following relocation to the UK, the parties operated written agreements (beginning 11 February 2015) under which the children travelled to Hungary during holidays, with the father contributing to travel expenses, and with continuing indirect contact via Viber. Direct contact last occurred on 13 April 2023. Negotiations about future contact and funding broke down, and indirect contact ceased (RS last on 25 May 2024).

The central issue was not jurisdiction or relocation, but whether—given a breakdown in the relationship, the child’s expressed opposition, and disputed narratives about the quality of past contact—it would be better for RS that a court order for contact be made than that none be made at all.

2) Summary of the Judgment

Lady Tait refused to make any contact order—both direct and indirect—in favour of the father. The court held that RS’s opposition to contact was genuinely held and not the product of maternal influence. Applying section 11(7) of the Children (Scotland) Act 1995, the court was not satisfied that making an order would be better for RS than making none.

While refusing orders, the court recognised the importance of RS maintaining his Hungarian heritage and the value of paternal family relationships. Lady Tait noted the potential for informal contact if RS visited Hungary, and that the father could attempt sensitive, non-pressurising communication by letter or email—though without court compulsion.

3) Analysis

3.1 Precedents Cited

  • J v M 2016 SC 835 (at para 11): the judgment restated that refusing parental contact requires a “careful balancing exercise” to identify “weighty factors” justifying such a serious step in the paramount interests of the child (sometimes described as “exceptional circumstances”).
    Influence on this case: Lady Tait treated refusal of contact as a serious outcome requiring justification in welfare terms, but found the necessary “weighty factors” in RS’s firmly expressed, genuinely held opposition and the adverse welfare impact of compelling contact.
  • NJDB v JEG (referred to within J v M 2016 SC 835, para 14 per Lord Reed): there must be a “reasonable basis” to refuse parental contact.
    Influence on this case: the court identified a reasonable basis in the child’s views (age 14), the consistency with the elder sibling’s lived-experience account, and concerns about the pursuer’s past non-availability and arrangements during contact.
  • Blance v Blance 1978 SLT 74; Cosh v Cosh 1979 SLT (N) 72; Brannigan v Brannigan 1979 SLT (N) 73: authority for the proposition that it may be inappropriate to make a contact order where a child is genuinely resistant to contact.
    Influence on this case: these cases supported the defender’s submission that genuine resistance can, depending on welfare, justify refusal; Lady Tait ultimately accepted resistance as genuine and decisive.
  • Russell v Russell 1991 SCLR 429: even if a child’s views have been influenced, they should still be respected, provided that they are genuinely held.
    Influence on this case: it shaped the court’s approach to scrutinising whether RS’s views were authentic. Having found no improper influence, the court treated the views as carrying substantial weight.
  • Wilkinson and Norrie The Law Relating to Parent and Child in Scotland (3rd ed) paragraph 9.46: cited for the general proposition on resistance to contact.
    Influence on this case: reinforced the framework that the child’s resistance is not a mere obstacle to be overridden but a welfare factor requiring careful evaluation.

3.2 Legal Reasoning

The reasoning is anchored in section 11(7) of the Children (Scotland) Act 1995: (i) welfare paramountcy; (ii) the “better that” test; and (iii) the duty to obtain and have regard to the child’s views so far as practicable, considering age and maturity.

A. Findings on the factual matrix

  • The court accepted that, when younger, RS enjoyed contact and had a loving relationship with the pursuer and paternal family (supported by evidence and photographs).
  • It was agreed (joint minute) that from January 2013 to April 2023 the defender facilitated extensive travel for contact, including long summer stays, and that there were no arrears of maintenance and agreed travel payments were made.
  • The court did not treat historic disputes (pre-2013 matters; maintenance; competing narratives about travel costs) as central to present welfare.

B. The child’s views and “influence”

The court treated RS (14) as of an age and maturity where his views required serious weight. The child welfare reporter found DS’s views coherent and genuinely held; RS was more reluctant and less articulate about reasons, but consistently opposed contact. Lady Tait nevertheless concluded that RS’s views were genuinely held and not influenced.

Critical to that conclusion were: (i) RS’s ability to recall specific incidents that made him uncomfortable (even if he struggled to label them); (ii) the “chiming” consistency between RS and DS’s accounts (pursuer’s promises not fulfilled; being left with grandparents; discomfort with pressurising calls); and (iii) the court’s acceptance that the defender did not set out to obstruct contact but attempted to renegotiate logistics (frequency, cost-sharing, and proposing contact in Scotland).

C. Why contact (including indirect contact) was refused

Lady Tait held that, standing RS’s views, making an order for direct or indirect contact would not be in his best interests and would improperly ignore his expressed wishes. Importantly, the refusal extended to indirect contact as well: the evidence indicated that RS found communications uncomfortable and experienced them as pressurising (repeated questioning about return to Hungary and associated conflict).

D. Practical welfare considerations: “age-appropriate” arrangements

Without criticising cultural or socio-economic differences, the court considered that certain past arrangements had become unsuitable for teenage children (notably sleeping arrangements and the reality that the pursuer’s work commitments left the children disappointed during lengthy contact periods). This analysis links welfare not merely to the abstract value of parental involvement, but to the lived quality and developmental appropriateness of proposed contact.

E. The pursuer’s stance on Scotland-based contact

The court explored contact in Scotland as a possible “unlocking” mechanism. The pursuer ultimately insisted that contact must be in Hungary, for reasons including frail parents, caring responsibilities, fear of flying and lack of passport. Lady Tait did not treat those reasons as illegitimate, but the child’s refusal extended to Scotland-based contact in any event, and the statutory “better that” test was not met.

F. The court’s “no order” outcome with a residual encouragement of sensitivity

While refusing orders, the court explicitly recognised: (i) the importance of Hungarian heritage and extended family ties; and (ii) the defender’s stated willingness to encourage contact if the child wished. The judgment leaves open the possibility of informal re-engagement, and signals that any approach by the pursuer should be sensitive and non-pressurising.

3.3 Impact

  • Reinforcement that older children’s resistance can justify refusing all contact: the decision exemplifies that a court may refuse not only direct contact but also indirect contact where a 14-year-old’s opposition is found genuine and compulsion would not advance welfare.
  • Quality of past contact matters: the judgment illustrates a welfare evaluation attentive to the child’s experience of being “let down,” the parent’s availability, and age-appropriateness—factors that may outweigh the general benefit of continuing parental relations.
  • Parental dispute “spillover” risk: although the defender was not found to be alienating, the case highlights the risk of children being exposed to legal/financial disputes (contracts, costs), which can shape discomfort and resistance and may be criticised even where not determinative.
  • Pragmatic post-order landscape: by emphasising informal possibilities and sensitive communications, the court signals that refusal of orders is not necessarily an endorsement of permanent estrangement, but a recognition that coerced contact may be counterproductive at a particular developmental stage.

4) Complex Concepts Simplified

  • Section 11(2)(d) “contact order”: a court order regulating direct contact between a child and a person the child does not live with.
  • Direct vs indirect contact: direct contact is in-person time; indirect contact is communication such as calls, messages, letters, and gifts.
  • Welfare is “paramount”: the child’s wellbeing overrides the parents’ preferences and claims of fairness.
  • The “better that” test: even if an order is possible, the court must not make it unless it is better for the child than making no order at all.
  • Child welfare reporter: an independent lawyer appointed to meet the child(ren) and report their views and circumstances to assist the court.
  • Plea-in-law sustained/repelled: the court accepted (“sustained”) the defender’s legal position and rejected (“repelled”) the pursuer’s.
  • “Exceptional circumstances” (as used in contact cases): not a rigid rule, but shorthand for the idea that refusing parental contact is serious and requires weighty welfare reasons.

5) Conclusion

[2026] CSOH 27 is a clear application of section 11(7) of the 1995 Act in a cross-border family context: despite a history of substantial holiday contact and a general presumption that parental relations are beneficial, the court refused to impose either direct or indirect contact where a 14-year-old’s opposition was found genuine and compulsion would not improve welfare. The judgment demonstrates that the “weighty factors” justifying refusal can be constituted by the child’s settled views, supported by credible experiential reasons (including disappointment, perceived broken promises, and discomfort with pressured communications), alongside practical concerns about the suitability of arrangements for an adolescent. At the same time, Lady Tait left open a pathway for informal, non-coercive re-engagement, reflecting the court’s recognition of the longer-term value of heritage and extended family connection—without sacrificing the child’s present welfare.