Factual and Procedural Background
The case concerned contact between the Plaintiff, the father of the Child born in March 2022, and the Child, including the Plaintiff’s request for residential contact aligned to his shift rota and holiday contact outside the UK. [Para 12][Para 23] The parties had been in a relationship from December 2019 until December 2024, after which the Child lived with the Defendant and contact initially continued by agreement. [Para 13][Para 86][Para 89][Para 92] Contact stopped on 27 October 2025 after the Defendant said the Child had disclosed alleged sexual conduct by the Plaintiff, and the Plaintiff was also subject to an undertaking and a condition not to approach, contact, or communicate with the Defendant in relation to criminal allegations. [Para 15] An interim order made on 9 January 2026 provided for supervised contact at least once and up to twice weekly for one hour, and the later proceedings concerned whether fuller contact should resume. [Para 17][Para 97]
Legal Issues Presented
- Whether the Plaintiff had sexually abused the Child on the balance of probabilities. [Para 109][Para 118]
- Whether, applying section 11 of the Children (Scotland) Act 1995, a contact order should be made and, if so, at what level and on what timetable. [Para 19][Para 25][Para 108]
- Whether section 11(7B) and section 11(7D) considerations, including the risk of abuse and the parties’ ability to co-operate, affected the appropriate contact order. [Para 32][Para 49][Para 127]
- Whether holiday contact and related specific issue orders should be granted at that stage. [Para 12][Para 23][Para 128]
- Whether the matter should be referred to the principal reporter under section 62 of the Children's Hearings (Scotland) Act 2011. [Para 129]
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff said the allegations were reactionary, arose after conflict over contact, and were not established by reliable evidence. [Para 110][Para 118]
- He maintained that the Child had a warm, affectionate relationship with him, that contact had worked well, and that his proposed pattern of contact was predictable and compatible with his work rota. [Para 105][Para 114][Para 128]
- He argued that the Defendant had not genuinely sought to protect the Child’s welfare but had restricted contact for other reasons, including disagreement over shared care and holidays. [Para 115][Para 120]
- He submitted that, if sexual abuse were not proved, extensive residential contact and holiday contact should resume. [Para 119][Para 128]
Defendant's Arguments
- The Defendant said the Child disclosed sexual abuse and repeated those disclosures to social workers, justifying the cessation of contact and continued supervision. [Para 184][Para 191][Para 353][Para 362]
- She maintained that the Child became dysregulated, over-stimulated, and exhausted after contact, and that nursery attendance and routine were important to his welfare. [Para 180][Para 183][Para 245][Para 246]
- She denied manipulating the Child or fabricating allegations, and said she acted protectively and in the Child’s best interests. [Para 188][Para 198][Para 306]
- She opposed a further JII and said any contact, if ordered, should remain professionally supervised. [Para 189][Para 310]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| J v M 2016 CSIH 52, 2016 SC 835 |
Welfare is paramount; refusal of contact requires careful balancing and weighty justification. [Para 55][Para 57][Para 58][Para 60] |
The court used it as part of the settled framework for deciding whether contact should be refused or limited, and to confirm that the welfare question remained central. [Para 108][Para 112] |
| M v K [2015] CSIH 54, 2015 SLT 469 |
Bringing an existing parent-child relationship to an end requires careful balancing and clear factors making that step necessary. [Para 61][Para 64] |
The court relied on it when considering whether a serious restriction on contact would be justified and whether the Child’s relationship with the Plaintiff should be disrupted. [Para 116][Para 119] |
| R v R 2010 Fam LR 123 |
Section 11(7A) requires consideration of abuse/risk of abuse, but findings of abuse do not create a presumption against an order. [Para 65] |
The court used it to explain that alleged abuse had to be weighed within the welfare analysis rather than treated as automatically barring contact. [Para 112][Para 123] |
| B v Scottish Ministers 2010 SC 472 |
Allegations of criminal conduct in civil proceedings are proved on the balance of probabilities but must be scrutinised carefully. [Para 67][Para 68] |
The court applied this approach when assessing the Child’s allegations and the quality and weight of the evidence. [Para 112][Para 118] |
| CM v ME-M 2019 Fam LR 125 |
Approved the careful scrutiny approach to criminal allegations in civil proceedings. [Para 68] |
It reinforced the court’s cautious evaluation of the sexual abuse allegations. [Para 112][Para 118] |
| A v A [2013] CSIH 7 |
Hearsay from children must be assessed for trustworthiness. [Para 69][Para 70] |
The court relied on it when evaluating the Child’s statements and the circumstances in which they were repeated. [Para 112][Para 114] |
| T v T 2001 SC 337 |
Wisdom and common sense are needed to assess whether children’s statements are trustworthy. [Para 69][Para 70][Para 408] |
The court invoked it to justify a careful, contextual assessment of the Child’s language and disclosures. [Para 112][Para 114] |
| Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, (2009) 1 AC 11 |
Facts must be found or not found on a binary basis; if the burden is not discharged, the allegation is unproved. [Para 75][Para 76] |
The court referred to this when deciding that the sexual abuse allegation was not proved on the balance of probabilities. [Para 118] |
| West Lothian Council v B [2017] UKSC 15, 2015 SC (UKSC) 67 |
If relevant allegations cannot be proved, they are treated as unproved and put out of account. [Para 77][Para 78] |
The court used it to support the treatment of unproved allegations in the welfare assessment. [Para 118][Para 119] |
| Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17 |
Describes the respective roles of social workers and the court in assembling and scrutinising evidence. [Para 79][Para 82][Para 83] |
The court cited it through West Lothian Council v B when discussing the social work evidence and the court’s own fact-finding role. [Para 112][Para 411] |
Court's Reasoning and Analysis
The court first identified the governing statutory test: welfare was paramount, no order should be made unless better for the Child than making none, and the court had to have regard to the Child’s views and to the abuse and co-operation factors in section 11(7B) and (7D). [Para 108][Para 397] It rejected the Plaintiff’s attempt to reduce the case to a single issue, holding that the evidence also raised contact routine, nursery attendance, handover conflict, and the parties’ ability to co-operate. [Para 109][Para 398][Para 400]
On the sexual abuse allegation, the court accepted that the Child had used words capable of sexual meaning on several occasions, but it treated those statements with caution because they were made in different settings, were partly prompted, and had to be weighed against the evidence as a whole. [Para 110][Para 112][Para 114] The court noted that there were no physical signs beyond a bruise and redness, no medical examination, and no child psychologist evidence, while police had concluded their investigation after no further action. [Para 115][Para 411] It also accepted that the Defendant had not fabricated or manipulated the Child into making the comments. [Para 111][Para 405]
Applying the balance of probabilities standard, the court concluded that the allegation of sexual abuse was not proved and accepted the Plaintiff’s denial. [Para 112][Para 118] However, the court held that the result did not justify immediate restoration of the pre-October 2025 arrangements because the Child’s routine, nursery attendance, and the parties’ poor communication remained important welfare factors. [Para 119][Para 122][Para 123] The court further found that section 11(7D) was engaged because the parties would need to co-operate and the Plaintiff was subject to criminal undertakings and the Defendant was dealing with trauma-related stress. [Para 123][Para 127]
The court preferred much of the evidence that the Plaintiff and Child had a warm relationship, but it also found the Plaintiff could be domineering and entitlement-driven in correspondence and that the Defendant had generally tried to accommodate contact. [Para 120][Para 121][Para 124] The court was critical of the Plaintiff’s insistence that nursery was optional and found it far from child-centred, especially given the evidence of dysregulation after contact and the need for a stable pre-school routine. [Para 122][Para 425][Para 426]
Balancing those factors, the court concluded that a staged return to fuller contact was in the Child’s best interests: first supervised contact, then eight sessions of non-residential unsupervised contact over two months, and only then residential contact of two nights during each four-day period off work. [Para 128][Para 436] It refused holiday contact and related specific issue orders at that stage because the Child needed to settle into his nursery routine and trust between the parents had to be rebuilt. [Para 128][Para 438]
Holding and Implications
ORDER MADE FOR CONTACT ON A STAGED BASIS. The court held that the sexual abuse allegation was not proved, but it nevertheless ordered a gradual progression from supervised contact to non-residential unsupervised contact and then to residential contact of two nights during each four-day break, with no holiday contact for now. [Para 118][Para 128][Para 441] It also declined to refer the matter to the principal reporter and reserved expenses. [Para 129][Para 443] The practical effect was to secure contact while prioritising the Child’s routine and safety, without deciding any new point of law. [Para 128][Para 441]