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ZS against TS (Court of Session)
Smart Summary
Factual and Procedural Background
This opinion, delivered by Judge Tait on 24 March 2026, concerns the pursuer's application for non-residential and ultimately residential contact with his younger child (Child A), and for indirect contact, under section 11(2)(d) of the Children (Scotland) Act 1995. The parties married in 2008, separated in 2012 and divorced in 2012. There are two children of the marriage (Child B being older). The pursuer resides in The State; the defender resides in The State with her partner and the children and has done so since 2013, living previously in The City and elsewhere in The State. Between 2015 and April 2023 the parties operated under written agreements providing that the children would travel to The State for contact and that the pursuer would contribute to travel costs; contact (direct and indirect) occurred in terms of those agreements. Direct contact last took place on 13 April 2023. Negotiations to revise the arrangements broke down, indirect contact ceased in 2024–2025, and the pursuer brought the present application. A child welfare reporter was appointed and produced a report to the court. After proof, the court refused the contact order sought and made findings as detailed below.
Legal Issues Presented
- Whether to make a contact order under section 11(2)(d) of the Children (Scotland) Act 1995 in respect of Child A.
- Whether, having regard to the paramountcy of the child's welfare and the child's age and maturity, it would be better for Child A that a contact order (direct or indirect) be made than that none be made.
- Whether Child A's expressed views opposing contact are genuinely held and free from undue influence such that they should be decisive in the welfare balancing exercise.
Arguments of the Parties
Pursuer's Arguments
- Sought an order for non-residential contact progressing to residential contact in The State and for indirect contact (telephone, video, messages, letters, gifts).
- Relied on the general principle that parental contact is usually conducive to a child's welfare and urged vigilance against external influence on the child's views.
- Submitted that the cessation of contact after 13 April 2023 represented a marked and unexplained change linked to the defender's attempts to renegotiate arrangements.
- Asserted willingness to pay travel costs and to maintain relationships with his elderly parents; expressed preference for contact in The State and cited practical reasons (fear of flying, no passport) for that preference.
Defender's Arguments
- Opposed contact as not in Child A's best interests because Child A consistently expressed that he did not wish to have contact (direct or indirect) and had become upset by attempts at contact.
- Explained that the financial burden of travel for repeated visits to The State led to attempts to renegotiate the earlier agreement; disputed that she sought to prevent contact.
- Contended that the pursuer made limited meaningful efforts to engage in recent years, that contact arrangements involved the children staying with the pursuer's parents, and that the children felt let down by unfulfilled promises.
- Stated she would encourage contact if the child wished and would comply with any court order; denied deliberately influencing the children against contact.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| J v M 2016 SC 835 |
Before refusing parental contact a careful balancing exercise is required to identify whether there are weighty factors ("exceptional circumstances") making refusal necessary; parental contact is generally conducive to welfare. |
The court applied the balancing approach from J v M when deciding whether to refuse contact, looking for weighty factors and assessing whether refusal was justified in the child's paramount interests. |
| NJDB v JEG |
There must be "a reasonable basis" for a decision to refuse parental contact (as explained by Lord Reed). |
The court required and considered whether there was a reasonable basis to refuse contact, treating the children's reported views and supporting evidence as central to that assessment. |
| Blance v Blance 1978 SLT 74 |
Principle that it may be inappropriate to make a contact order where a child is genuinely resistant to contact. |
The court relied on this line of authority in assessing whether Child A's resistance to contact was genuine and, if so, whether that rendered a contact order inappropriate. |
| Cosh v Cosh 1979 SLT (N) 72 |
Support for the proposition that genuine resistance by a child can make a contact order inappropriate. |
Used as part of the authorities supporting deference to a child's genuine wishes when deciding on contact orders. |
| Brannigan v Brannigan 1979 SLT (N) 73 |
Similar authority concerning respecting a child's genuine opposition to contact. |
Considered alongside other authorities in concluding that genuine opposition can outweigh the normal presumption in favour of parental contact. |
| Russell v Russell 1991 SCLR 429 |
A child's views should be respected if they are genuinely held. |
The court treated the reporter's assessment and the children's accounts against this principle when determining whether Child A's views were genuinely held and entitled to substantial weight. |
Court's Reasoning and Analysis
The court proceeded from the statutory test in section 11(7) of the Children (Scotland) Act 1995: the child's welfare is paramount and an order should be made only if it would be better for the child than making none; the child's age and maturity require that his views be considered. The court reviewed the factual background: a history of regular holiday contact from 2013–April 2023 under written agreements, substantial earlier positive contact, and maintenance of indirect contact until 2024–2025.
The court examined the child welfare reporter's meetings and reports. Child A (now aged 14) consistently expressed that he did not want any form of contact with the pursuer and could not, in the reporter's meetings, explain fully why; Child B gave coherent reasons related to feeling let down and the pursuer's lack of engagement. The court considered whether those views were genuinely held or subject to influence. It found no evidence that the defender had sought deliberately to turn the children against the pursuer; correspondence showed the defender attempted to renegotiate practical arrangements rather than to prevent contact.
The court also considered the pursuer's conduct: while earlier contact had been positive, more recent conduct (promises not fulfilled, delegation of care to paternal grandparents, accommodation and activity levels becoming unsuitable for teenagers, and limited meaningful engagement) supported the children's criticisms. The pursuer's insistence that contact take place only in The State (linked to his caring responsibilities for elderly parents and practical constraints) was explored as a potential impediment to unlocking contact in The State where the children now live.
Applying the authorities requiring a balancing exercise and respect for genuinely held views, the court concluded that Child A's opposition to contact was genuinely held, not the product of improper influence, and that making a contact order (direct or indirect) would not be better for him than making none. The court did, however, note the cultural and familial value of maintaining the child's heritage and indicated that sensitive, non-pressurising written contact (letters or email) was open to the pursuer.
Holding and Implications
CONTACT ORDER REFUSED
Holding: The court sustained the defender's plea-in-law, repelled the pursuer's plea-in-law and refused to make a contact order in favour of the pursuer.
Implications: The direct effect is that no court-ordered direct or indirect contact is made; the court found no expenses due by or to either party. The decision rests on the specific welfare assessment of Child A and his genuinely held views; the opinion does not purport to establish a new general precedent beyond applying existing authorities on welfare, respect for a child's genuine views and the need for a reasonable basis to refuse parental contact.
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