Introduction
The recent decision in PK v SK [2025] SC HAM 61 from Hamilton Sheriff Court is a notable departure from the rhetoric of many previous judgements in Scottish child law cases. The decision stands out for its willingness to contemplate a shift in residence in response to entrenched parental opposition to contact, despite the traditionally cautious approach of Scottish courts towards ordering such changes in child cases.
Case summary
The parties, who separated in 2020, are parents to a seven-year-old child, LK. Following separation, LK resided with his mother, and his father was granted fortnightly residential contact. In August 2024, an incident occurred at the mother’s home. The father, reportedly frustrated by contact arrangements, arrived demanding contact, leading to a physical altercation witnessed by LK. The child’s mother forced the door shut, and the child’s father broke the door’s glass. He was subsequently convicted of behaving in a threatening or abusive manner, aggravated by domestic abuse, with a two-year non-harassment order imposed.
The child’s mother applied to suspend and ultimately reduce contact to nil, citing the child’s anxiety and fear following the aforementioned incident. The child welfare reporter found LK articulate in expressing his reluctance to see his father, attributing his fear to the incident. The father argued that the child had been coached and that the mother’s opposition was the real barrier to contact.
The court’s decision and rationale
The court granted the mother’s application, reducing contact to nil. However, that is not the end of the story. Importantly, the sheriff indicated that if the mother failed to restore informal contact within six months, the father could apply to review the child’s residence, implicitly raising the prospect of a shift in residence - a step rarely contemplated in Scottish practice absent clear evidence of harm.
The judgment is notable for several reasons:
Recognition of harm
The court acknowledged that, for the foreseeable future, LK would live solely with his mother, without a male role model, second parent, or contact with his paternal family. This was described by the court as “grossly detrimental” to the child’s welfare.
Parental attitude as a barrier to contact
The sheriff found the mother’s “relentless opposition” to contact to be the principal cause of the breakdown, characterising her conduct as “abusive.” The toxicity of the parental relationship and lack of a suitable intermediary for handover were key factors.
Child’s views
Whilst the child’s fear of contact was recognised, the sheriff considered it an “overreaction” and inferred that LK’s concern was primarily for his mother’s wellbeing, not his own safety. The judgment suggested that any positive engagement with the father was likely met with withdrawal of affection from the mother.
Domestic Abuse Considerations
In line with s.11(7A)-(7E) of the Children (Scotland) Act 1995, the court considered the need to protect the child from abuse. However, the sheriff concluded that the main issue was not the father’s isolated abusive incident, but the mother’s implacable opposition to contact.
Significance for practitioners
1. A departure from caution
Scottish courts have historically erred on the side of caution in child cases, particularly regarding changes in residence. The reluctance to disrupt a child’s settled environment is well-established. Sheriff Bovey’s judgment, however, signals a willingness to intervene where a parent’s conduct - rather than the child’s expressed views or a single incident - creates an “insuperable barrier” to contact. This approach is notably robust.
2. Domestic abuse: statutory obligations and judicial balancing exercise
Section 11(7A)-(7E) of the Children (Scotland) Act 1995 obliges courts to consider domestic abuse and its impact on the child. In PK v SK, whilst the father’s abusive behaviour was acknowledged and weighed, the sheriff’s analysis focused on the mother’s attitude as the decisive factor. This nuanced approach underscores that statutory obligations to consider abuse do not preclude scrutiny of the wider family dynamic, including parental alienation or opposition to contact.
3. Child’s views
The judgment highlights the complexity of interpreting a child’s views in the aftermath of traumatic events. Practitioners should note the sheriff’s distinction between genuine trauma responses and attitudes shaped by parental influence. The court’s willingness to look beyond the child’s stated fears to the underlying family context is instructive.
4. Residence as a remedy for implacable opposition
Perhaps the most striking aspect of this case is the sheriff’s indication that continued opposition to contact could justify a review of residence. Whilst no immediate order was made, the judgment puts the mother on notice that her conduct may ultimately undermine her position as the child’s primary carer. For practitioners, this is a reminder that the welfare principle can, in exceptional cases, override the status quo where a parent’s behaviour is found to be “abusive” in its effect on the child’s relationships.
Conclusion
PK v SK [2025] SC HAM 61 is an unusual and arguably bold decision for Scottish child law, demonstrating a willingness to take decisive action where parental opposition to contact threatens a child’s welfare. The judgment is a reminder that the court’s paramount concern is the child’s best interests, and that entrenched parental attitudes will be scrutinised. Practitioners should be alert to the possibility that, in cases of implacable opposition, the court may consider a shift in residence, even where such steps have traditionally been viewed as a last resort.
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