To vary, or not to vary?

The recent judgement of Sheriff Nicol in the case DM v JH [2023] SC KRK 15 regarding an application by the Defender (mother) to vary, in part, a contact order entitling the child’s father (Pursuer), to have residential contact with the child, contains a helpful commentary regarding the Minute to Vary process.  Standard advice to individuals with a contact/residence order would likely be that there would need to be a change in circumstances before the court can, or should, grant a variation to said order. However, this recent case from Kirkwall Sheriff Court helpfully highlights that this is not in fact, always the case. If it were, it would come into direct competition with the welfare principle.   

By way of background, an original Proof took place in November 2020 to ascertain:

1. Whether the Defender was entitled to a residence order and a specific issue order to allow her and the child to relocate from Orkney to Kilwinning; and
2. Whether the pursuer was entitled to a residential contact order.

In May 2021, both residence and specific issue order were granted.  The court also heard that the Pursuer was entitled to a contact order without determining the specifics of the order at that time. The Sheriff thereafter fixed a Child Welfare Hearing so the court could be addressed on the specific contact arrangements for the child to see his father in Orkney. 

In advance of said Child Welfare Hearing, the parties reached agreement on the contact arrangements and an interlocutor was pronounced in May 2021 to reflect the agreement reached.  On the basis of that interlocutor, the Pursuer became entitled to exercise contact with the child:

• Every second weekend during term time,
• One week during the Easter holidays,
• Three weeks during the summer holidays,
• One week during the October holidays,
• Half of the Christmas holidays alternating between Christmas and New Year,

In April 2022, the Defender unilaterally altered the contact arrangements, reducing the Pursuer’s residential contact with the child in Orkney from every second weekend during term time to approximately once a month. The basis for the Defender’s application to vary the term time contact was that there had been a material change in circumstances since the interlocutor.  In particular, she could no longer afford to pay for flights to take the child to Orkney every second weekend due to a substantial increase in the cost of travel and the general increase in cost of living.  She also indicated in evidence that the child’s head teacher had expressed concern at the amount of time the child was missing from school on a Friday afternoon.  Finally, the Defender argued that these new contact times had been operating for approximately one year without any issue.  The Defender proposed varying the contact arrangements to approximately monthly intervals but mostly for longer periods at a time.

The Court considered three questions:

1. Does there require to be a material change in circumstances before the court can, or should, grant a variation to a contact order?
2. If the answer to the first question is yes, has there been such a change so as to justify, in terms of the welfare principle and any other relevant consideration, granting the variation sought in whole or in part?
3. If the answer to the first question is no, should the variation none-the-less be granted in whole or in part having regard to the welfare principle and any other relevant consideration?

In this case, the court found the answer to the first question was in fact, no.  In terms of the current case, the court stated that it could not be said that the terms of the current contact order were a product of a judicial inquiry and therefore, it was unknown what contact order the court would have granted if the parties had not reached agreement extra judicially.  Importantly, it was noted that if there was a requirement that there had been a change in circumstances before a court is entitled to vary a contact order, that would have the potential for undermining the welfare principle.

In relation to the third question, the court found the answer to be yes.  This was on the basis that the original contact order predated the cost of living crisis and the contact arrangements had not been tried and tested when the interlocutor was pronounced.  In addition, the original contact order arrangements meant contact was rushed and the child had, on occasion, suffered ill health due to the amount of travelling.  However, the court noted that the financial reasons advanced by the defender did not carry any great weight. 

Ultimately, the Court varied dates for term time contact in line with the Defender’s proposals but also granted the Pursuer additional contact to the extent of one night in the middle of each of the three periods. 

This is a helpful commentary on how a case can be presented to the court when a Minute to Vary is sought – and that the welfare principle is always of paramount importance.