UKSC 21
On appeal from:  CSIH 83
NJDB (Appellant) v JEG and another (Respondents) (Scotland)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
23 May 2012
Heard on 13 and 14 March 2012
Andrew Smith QC
(Instructed by Jardine Donaldson Solicitors)
Simon di Rollo QC
(Instructed by Virgil Crawford & Co Solicitors)
Andrew Hajducki QC
(Instructed by Campbell Smith WS LLP)
LORD REED (WITH WHOM LADY HALE, LORD CLARKE AND LORD WILSON AGREE)
" in considering whether or not to make an order under subsection (1) above [viz an order in relation to parental responsibilities, parental rights, guardianship or the administration of a child's property] and what order to make, the court
(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all "
As Lord President Rodger observed in White v White 2001 SC 689, para 14, this is merely the latest in a long line of similar provisions going back to the Guardianship of Infants Act 1925.
"(160) If contact between S and pursuer were to occur, handovers would take place amid an atmosphere of hostility, assuming that S willingly attended for contact. Were a contact order to be made, S would be unwilling to attend. It is probable that he would refuse to attend. It would probably distress him and involve him again in the continuing conflict between the parties. There is no third party that would be prepared to take on the role of intermediary. It is not in S's best interests that he is exposed to such conflict.
(161) Having regard to S's age, the history of these matters to date and the influences at work on S, he would not derive any benefit from contact in such circumstances.
(162) Contact with his father is not consistent with S's welfare or best interests."
The sheriff's second finding in fact and law is as follows:
"(2) That it is in the best interests of S that he does not have contact with his father".
It is plain from these findings that the sheriff treated the welfare of the child as the paramount consideration, and considered whether it was in the child's best interests that an order for contact should be made.
" If I made a contact order S would inevitably be exposed to a perpetuation of the conflict he has had to endure now for more than six years. He is only nine, so he has endured this conflict for two-thirds of his life. Exposure to conflict is not in a child's best interests. There is the danger, of course, that if no contact order is made and S does not see his father now, there may be emotional consequences of a psychological nature as he reaches adolescence. He might resent his mother and consider her responsible for cutting his father out of his life
 In considering what is in S's best interests, it is a question of now balancing the disadvantages or risks against the benefits of contact. It is, in my view, almost certain and indeed may be inevitable, that if a contact order were to be made forcing S to see his father, not only would S be re-exposed to the conflict between his parents; he would also be asked to do something that is against his present wishes. Contact simply would not work. It would, for S, deteriorate into nothing more than a focus of argument, contention and turmoil with his mother, father and step-father. The defender and her husband would continually suspect, with good reason, that the pursuer would be undermining S's relationship with his mother and step-father and would again seek to have S live with him. It is not in S's best interests that he should be exposed to that.
 Since September 2007 when there has been no contact, he has not shown any sign of distress or that he has missed his father or wants to see him. He has thrived in his father's absence and is a happy, well-balanced boy who is performing satisfactorily at school. Two and a half years is a significantly lengthy period during which, if he were suffering from any internal emotional conflict because he did not see his father, signs might conceivably have been expected to have emerged.
 In these circumstances, it is in the best interests of S that he should not have any contact with his father."
LORD HOPE (WITH WHOM LADY HALE, LORD CLARKE AND LORD WILSON ALSO AGREE)
"In any cause, other than a family action within the meaning of rule 33.1(1) or a civil partnership action within the meaning of rule 33A.1(1) which has proceeded as undefended, where at any stage evidence has been led, the sheriff shall
(a) in the interlocutor, make findings in fact and law; and
(b) append to that interlocutor a note setting out the reasons for his decision."
That rule, which replaced rule 89(1) of the Ordinary Cause Rules 1983 (SI 1983/747), can be traced back to rule 82 of the First Schedule to the Sheriff Courts (Scotland) Act 1907 (7 Edw 7, c 51), which provided:
"To all interlocutors, except those of a formal nature, the sheriff shall append a note setting forth the grounds upon which he has proceeded and in his final judgment on the merits he shall set forth his findings in fact and in law separately."
That rule can its turn be traced back to an Act of Sederunt of 15 February 1851.
"The findings in fact, as well as the findings in law, must be in the interlocutor itself, and not in the note, and it has been indicated that the findings in fact should include not only the bare facts upon which the judgment is based, but all the relevant facts material to the contentions of either of the parties."
The indication referred to in the latter part of that sentence was in the speech of Lord Herschell in Little v Stevenson & Co (1896) 23 R (HL) 12, 15 where he said that it would be extremely desirable that all the facts material to the contentions of either of the parties, even though not material to the point on which the judgment proceeds, should be found in the interlocutor.
"Where any such appeal is taken to the Court from the judgment of the sheriff principal or sheriff proceeding on a proof, the Court shall in giving judgment distinctly specify in its interlocutor the several facts material to the cause which it finds to be established by the proof, and express how far its judgment proceeds on the matter of facts so found, or on matter of law, and the several points of law which it means to decide."