“Discernible benefit” test inappropriate in contact decision

A reminder from the Inner House that there is no onus on a parent seeking contact to present examples of the “discernible benefit” of contact: see JM v PK [2015] CSIH 54 (8 July 2015). The “intrinsic value” of a child having a relationship with both parents does not require a parent to present a “concrete example” of the benefit of continuing contact, and the sheriff was plainly wrong at first instance in adopting such an approach.

The termination of contact – with no obvious prospect of resumption and no consideration as to how it might be reinstated – represents a significant interference by the state in family life and must therefore be necessary. The material before the sheriff at first instance was insufficient to conclude there was a future risk of emotional harm to the child.

Lord Eassie's opinion is of interest too for the observations on the circumstances in which a finding of contempt of court can be made and for the role of the lay representative, Mr Maxwell, in acting for the appellant father.