Kirkcaldy sheriff refuses supervised contact order to father found to have sexually abused child’s half-sister

About this case:

• Citation:
  [2026] SC KDY 100
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff John A MacRitchie SSC

The minuter was refused all contact with his daughter, with whom he had never had a relationship, by a sheriff in December 2023. A minute to vary those arrangements to allow supervised contact subsequently came before the sheriff.

The case was heard by Sheriff John MacRitchie, with the minuter appearing in person and Inch, solicitor, for the respondent.

Sexual abuse of ex-partner’s child

The parties met in around February 2020 and entered a sexual relationship lasting until the onset of the pandemic the following month. In April 2020, the minuter visited the respondent’s home and, while alone with her four-year-old daughter, sexually abused the child. Three months later, a child conceived during the parties’ short relationship was born prematurely.

Disclosure of the minuter’s abuse in December 2020 led to the implementation of a social work safety plan prohibiting the minuter from having contact with either of the respondent’s children, including the child he had fathered. Since that date, the minuter has had no contact with either child, with the youngest having no memory of ever having met her father.

In 2023, the minuter raised proceedings seeking contact with his daughter. That motion was dismissed, with a subsequent appeal to the Sheriff Appeal Court, as well as permission to appeal to the Court of Session, likewise refused. A minute to vary that determination was subsequently lodged in 2026, with the minuter seeking supervised contact with his now five-year-old daughter.

In submissions, the minuter averred that his having never been convicted of the sexual abuse of the respondent’s daughter and the passage of time amounted to a material change of circumstances since the 2023 decision. It was in the best interests of the child, he argued, that his daughter should be afforded the opportunity gradually to build a relationship with her father.

By contrast, the respondent rejected the proposition that there had been a material change in circumstances since the 2023 decision. All that had changed, she submitted, was the age of the parties’ child. Moreover, since it would be unnecessarily traumatising to the child to seek her views on the matter (for to do so would involve disclosing to her the sexual abuse of her older sister), the respondent moved the court to forego attempting to ascertain the views of the child.

Not better to order contact than not to do so

Sheriff MacRitchie began his decision by observing that: “In PSC v NS (2026), Lord Braid concluded (drawing together relevant authorities and academic text): ‘…the principle of finality of litigation … does not preclude the court from re-examining the arrangements for the care of a child, provided that there is a welfare reason to do so. That will ordinarily require a material change of circumstances, but where the welfare of children is concerned it would be wrong to be too prescriptive as to when the court may or may not entertain a minute to vary, provided that something has changed since the original decision such as to render a reconsideration appropriate’.”

He continued: “Accordingly, the issue for the court is whether since the original decision a welfare reason has arisen to render a reconsideration appropriate. Section 11(7)(1)(a) of the [Children (Scotland) Act 1995] provides that the welfare of the child is the court’s paramount consideration and that the court shall not make an order unless it considers it would be better for the child that the order be made than that none be made.”

Turning to the merits of the minuter’s case, Sheriff MacRitchie noted: “Section 11(7A) and (7B) of the 1995 Act require the court to have regard in particular to the need to protect the child from abuse or the risk of abuse, which includes conduct such as unnecessarily disclosing and having to explain to her the sexual abuse of her sibling, with a likelihood of giving rise to fear, alarm or distress … The nature of the findings previously made is such that the mere passage of time, without evidence of rehabilitation, treatment, professional assessment or any objective change in the factors giving rise to risk, provides no evidential basis upon which the court could conclude that the identified risk has materially reduced.”

As to the minuter’s request for supervised contact, the sheriff added: “The introduction of even indirect contact would be likely to raise questions regarding the minuter’s role in her life and would create pressure for further explanation and future progression of contact. I am not satisfied that any welfare benefit presently outweighs the risks identified. Supervised contact was expressly considered and rejected in the original proceedings. It was recognised that supervised contact is ordinarily but a stepping stone to unsupervised contact and that in the circumstances this could not be contemplated due to the ensuing risk of serious harm to [the child]. Nothing now advanced justifies a different conclusion.”

On the matter of whether the child ought to have been given the chance to express a view, he reasoned: “Having considered the evidence, it is noted that [the child] remains in ignorance of the abuse of her sibling by the minuter. There would be no reason for her to be told of this abuse at this early stage in her life, where contact with the minuter is not taking place. Any request to take [her] informed and thus meaningful views would however require exposing her to very distressing and therefore harmful facts at a very young age. I have concluded that it is therefore positive that neither party had sought to place [the child’s] welfare at such risk by seeking such views. While I was initially concerned that the child had not been given an opportunity to express a view, in the exceptional circumstances of this case, and after careful consideration, I have concluded that parties were right not to have done so.”

Dismissing, ultimately, the minuter’s arguments, Sheriff MacRitchie concluded: “The findings of risk remain extant, and nothing has changed since the original decision such that there is a welfare reason to render a reconsideration appropriate. Having considered the evidence led at this proof and assessed [the child’s] welfare as at the date of determination, I am satisfied that the statutory tests in section 11(7)(1)(a) are not met. It is not in [her] best interests that contact take place and it would not be better for [her] that a contact order be made than that none be made. The findings of risk remain extant, and no subsequent development establishes a welfare basis for departing from the earlier determination. The considerations in sections 11(7A), 11(7B) and 11(7D) further support the conclusion that contact would be inconsistent with [her] welfare and that protection from abuse and the risk of abuse remains paramount.”

The minute to vary was accordingly refused.