Section 11(7D) as Gatekeeper in Domestic‑Abuse Contact Disputes: Refusal of Even Indirect Contact despite Positive Sessions — SJM v AJD [2025] CSOH 84

Precedents Cited and Their Influence

• White v White 2001 SC 689 at [21]

  Reaffirms the general principle that maintaining personal relations and direct contact with the non-resident parent is conducive to a child’s welfare, but emphasises that this is not automatic. The court must decide on the facts whether contact is in the child’s interests; if the material does not support that conclusion, the application fails.

  Influence: Lady Tait invoked White to frame the court’s task: the default inclination towards contact yields to the concrete welfare analysis. Here, the body of evidence (abuse, risk, and impact on the primary carer) provided a proper basis to refuse contact.

• NJDB v JEG 2012 SC (UKSC) 293 at [31]

  The Supreme Court cautioned against focusing on peripheral factual disputes and urged a direct focus on factors relevant to the welfare discretion. Elsewhere (para 14), “reasonable basis” is required for refusing contact.

  Influence: The judgment mirrors NJDB by concentrating on the dispositive factors: the abuse findings, the risk and its effect on the children and on the resident parent’s caregiving, and the realistic practicality of co-operation. The court found a reasonable basis—indeed, compelling reasons—to refuse contact.

• J v M 2016 SC 835 at [11]

  Before refusing parental contact, courts must undertake a careful balancing exercise and identify “weighty factors” (sometimes styled “exceptional circumstances”) that justify such a serious step in the child’s paramount interests.

  Influence: The court viewed the sustained domestic abuse, the defender’s ongoing hostility (including abusive messages during litigation), and the deleterious effect on the pursuer’s mental health and caregiving as weighty factors justifying refusal even of indirect contact.

Legal Reasoning

Lady Tait’s reasoning is firmly rooted in the statutory matrix of section 11 of the 1995 Act, integrated with the cited authorities:

• Paramountcy and the “no order” principle (s 11(7)(a))

  The court must regard each child’s welfare as paramount and should not make an order unless it would be better than making none. Applying this to contact, the court concluded that making any contact order would not be better for the children given the abuse context and likely consequences.

• Child’s views (s 11(7)(b))

  The children’s views were carefully obtained via a child welfare reporter across multiple reports. The younger child expressed a wish to see her father; the elder child was ambivalent. Lady Tait acknowledged these views but assessed them against age, maturity, and the protective framework. The views were not determinative and did not displace the protective analysis under s 11(7B)–(7D).

• Abuse and risk framework (s 11(7B)–(7C))

  “Abuse” includes violence, threatening conduct, and domestic abuse; it can be abuse of a person other than the child. On the facts, the court found the defender had been verbally, physically, and sexually abusive to the pursuer, sometimes in the children’s presence. This engaged:

  • The need to protect the children from abuse or risk of abuse (11(7B)(a));
  • The effect of such abuse on the children (11(7B)(b)); and
  • The effect of abuse or risk of abuse on the pursuer’s ability to carry out caregiving responsibilities (11(7B)(d)).
  The latter was particularly salient: evidence from the GP and the forensic psychologist showed serious anxiety and trauma symptoms in the pursuer linked to the defender’s conduct; supervised contact intensified her symptoms, impairing caregiving.

• The co-operation test as a gatekeeper (s 11(7D)–(7E))

  Where relevant persons would need to co‑operate in the child’s matters, the court must consider whether it is appropriate to make the order. Given the history and ongoing hostility, the court concluded it would not be appropriate to impose an order requiring co‑operation; doing so would expose the pursuer to further harm and undermine the children’s welfare. This operated as a decisive filter even against indirect contact.

• Evaluation of contact evidence in context

  Supervised sessions recorded many positive interactions—curiosity, warmth, and reassurance. The court recognised the defender’s capacity for engaging activities and the children’s positive recollections. But it held those episodes were ultimately “overshadowed” by the sustained pattern of abuse and continuing manipulative framing (e.g., statements suggesting contact was controlled by the pursuer and urging children to “speak up” to her), reflecting a focus on the defender’s needs rather than the children’s.

• Expert and documentary evidence

  Professor Macpherson’s reports, based on thematic analysis of nearly 1,200 messages, evidenced coercive and degrading communications. He diagnosed an adjustment disorder with anxiety and post‑traumatic symptoms in the pursuer attributable to the defender’s conduct, opining symptoms would persist with ongoing contact. The ADHD letter did not explain the content and themes of the messages. The pursuer’s diary entries and GP evidence were consistent. The defender’s denials were rejected; his explanations (e.g., that communications reflected distress, or sought intimacy) were not accepted.

• Residence order and certainty

  While residence was conceded, Lady Tait considered that making a formal residence order was “better for” the children to provide certainty given the defender’s unpredictability.

• Interdict against removal (Family Law Act 1986, s 35)

  Against the backdrop of earlier US orders and the international context, and the defender’s refusal to accept the Scottish court’s jurisdiction, the court granted interdict prohibiting removal from the jurisdiction to prevent unilateral action and safeguard stability.

• Procedural assertions

  The defender’s repeated allegations of jurisdictional nullity and constitutional crisis were rejected; the court clarified that a remark about jurisdiction during proof related to contempt considerations concerning a witness physically present, not any acknowledgement of jurisdictional defect.

Impact and Significance

• Re‑centring section 11(7D) as a decisive filter: The judgment foregrounds the co‑operation test as a gatekeeper in domestic‑abuse cases: where co‑operation is unsafe or impracticable, it may be inappropriate to make a contact order at all. This is especially pertinent to indirect contact, sometimes perceived as a minimally intrusive fallback; SJM v AJD confirms that even indirect contact can properly be refused when the s 11(7B) risk and s 11(7D) co‑operation analyses point against it.
• Abuse against the resident parent can be determinative for contact: The statutory inclusion of abuse of a person other than the child (s 11(7C)) is operationalised here. The court recognises that such abuse reverberates through the caregiving environment, directly affecting children’s welfare and the carer’s ability to parent, thereby justifying refusal of contact notwithstanding superficially positive interactions.
• Positive supervised contact is not conclusive: The decision cautions that brief positive sessions do not neutralise systemic risk or erase the impact of coercive control, especially where the parent continues to frame the other parent as the obstacle to contact or uses contact to gather information.
• Weight given to digital evidence of coercive control: Extensive abusive messaging, thematically analysed, can be powerful corroboration of a coercive pattern and support findings of domestic abuse affecting welfare determinations.
• International dimension and protective orders: In cross‑border contexts with prior foreign orders or return proceedings, Scottish courts can still grant interdict under s 35 FLA 1986 to prevent removal where risk and unpredictability are shown and where the Scottish court is seised of s 11 orders.
• Child’s views are respected but not determinative: Where young children express interest in contact, courts may still refuse contact when protective considerations (risk and co‑operation impracticability) outweigh those expressed wishes.
• Practical guidance for practitioners:
  • Lead concrete, contemporaneous evidence of abuse and its impact on caregiving (diaries, GP records, expert psychological analysis).
  • Address s 11(7D) expressly: explain why co‑operation is unsafe or unworkable, even around ostensibly “low‑conflict” indirect contact.
  • Interpret supervised contact observations in context; prepare to explain why apparent positivity does not equate to safety or welfare benefit.
  • In international cases, consider s 35 FLA interdict early to stabilise residence pending resolution.