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Entries in contact orders (6)


Courts should resolve contact cases in weeks not years 

Lord GlennieAn appeal judgement from the Court of Session expresses strong concern about the way child contact cases are handled in Scottish courts.

In commenting on the length of time taken to make a contact order in the case at appeal, Lord Glennie states:

"The time taken to resolve disputes about contact should be measured not in years but in weeks or, at most, months.  We recognise that there may be subsequent applications to vary contact arrangements, but the initial decision should be capable of being made, following a short well-organised evidential hearing, within this time-frame."

The child contact action in this particular case took from January 2010 to October 2013 to reach a judgement.  Even when contact was ordered by the court it was sporadic and it is currently more than a year since the father has seen his son.

Delays in child contact cases in Scottish Courts have been criticised before, including by the Supreme Court in NJDB v JEG in 2012, and in the Civil Justice Review. 

Families Need Fathers Scotland knows of a significant number of other Scottish contact cases which have spent years in courtNow that we have such a clear and forthright statement of aims by judges in Scotland's highest court, we will be pressing the judiciary and the Scottish Government to implement changes which will translate these aims into reality.

The father in this case is lodging a complaint with the European Court of Human Rights, claiming that this failure to ensure contact is in breach of his human rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.  Recent cases such as Malec v Poland and Moog v Germany have upheld such complaints and fined the respondent states.

The main part of this judgement concerned the mother's successful appeal against her prison sentence for contempt of court because a contact order was not carried out.  This also raises issues about how courts should enforce child contact orders.  FNF Scotland and other stakeholders will be taking part in a meeting later this month called by Scottish Government to discuss how such orders should be enforced.


Poland penalised for court delays in resolving father's contact dispute 

The European Court of Human Rights has awarded a Polish father compensation after ruling that Poland breached Article 8 of the Convention for the Protection of Human Rights.  In the judgement Malec v Poland as reported in Family Law Week the ECHR awarded Mr Malec 7,000 euros in damages and 5,000 euros to cover his legal costs.

The parents separated in 2008, and when contact problems developed the father obtained an interim contact order in November 2010.  His contact with his child became irregular and the conflict between the parents escalated. Subsequently, between May 2011 and January 2012 almost no contact took place. Afterwards, contact took place irregularly, usually only on weekdays and without any overnight stays.

A court appointed guardian pointed out in her report in July 2009 that a "speedy regulation of contact visits between the child and the father is recommended", but it took the domestic court two years to issue an interim contact order. Subsequently, as of May 2011, it had become impossible to have any contact visits.

When the Mr Malec's former wife failed to comply with the court contact orders, the applicant began to file enforcement claims with the District Court. He filed over 50 such requests and they eventually resulted in the District Court ordering the mother to comply with the access arrangements and to the imposition of fines on two occasions, only one being collected by May 2013.  

The ECHR judgement states that: " ... a lack of cooperation between parents who have separated is not a circumstance which can of itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child".

FNFS has raised this judgement with the Scottish Courts in connection with our concerns about delays both in the hearing of cases and the issuing judgements.


SLAB streamlining could speed up action on contact

From June 2016 the Scottish Legal Aid Board (SLAB) have introduced changes which are intended to "streamline" various parts of the financial support they offer.  Three are of particular interest in relation to legal action to regain contact with children.

SLAB are amending their approach to granting special urgency cover in cases where contact had previously been operating satisfactorily but the parent with care suddenly ends this contact for, on the face of it, no good reason. 

In those situations SLAB will now grant special urgency cover to allow an immediate court action to be raised to reduce the possibility of various delays to resuming contact, such as the need for a child welfare report, the need for several child welfare hearings and the need to introduce supervised or supported contact. 

SLAB comments that: "Long delays are not beneficial to the child or children who were previously enjoying contact with their non-resident parent and it could cost the public purse more."

Where contact was not operating just before the request for special urgency cover is made SLAB will continue to view this as a matter that can wait until the legal aid application is decided.

The second change relates to the availability of funding for supervised and supported contact to advice and assistance. SLAB have been meeting the costs of supervised and supported contact under civil legal aid since 2012. Since then the number of requests for funding has increased steadily. 

SLAB comments that: "... we want to encourage parties to resolve contact disputes without going to court.  Reducing conflict in relationship breakdowns where there are children involved and offering less contentious ways of settling such disputes will benefit the children involved."

The third change is making funds available for family therapy. The courts are increasingly referring cases to family therapy as a possible means of resolving difficult family disputes.  It can be used to resolve the tensions between parties rather than increasing this tension through the court process. 

SLAB now views family therapy as a useful option to try to resolve disputes between parties without excessive intervention by the court.   Where a request for funding for family therapy is made they will require to be given information about the issues to be considered by the family therapist,  clarification on the likely cost of the therapy and its duration and details of the potential prospects for successfully undertaking therapy.  

The other streamlining changes include removing the need for separate legal aid applications for each child and changes to stage reporting. 

FNF Scotland welcomes these changes as we know that long delays can often make it more difficult to resume contact.  We agree that providing early support through therapy could be a lot more cost effective than a drawn-out adversarial court process and we know that although such services are not yet available throughout Scotland there is now a steady build up in provision.

We would be very interested to hear from parents and family lawyers about how these new procedures are working and welcome any other suggestions about how legal aid could be made more effective.


Petitions Committee to raise fitness of family law with Scottish Government

The Scottish Parliament Public Petitions committee this morning undertook to write to the Scottish Government for its view on whether it is time to look seriously at a review of Scottish family law. 

The committee had taken evidence on his petition http://tinyurl.com/jkb8227 by Stewart Currie that had called for an independent review on a range of issues where he felt the procedures within family law for agreeing contact/residence arrangements for children when their parents no longer live together are unsatisfactory or contradictory and often work against the stated objective of making the child's interests paramount.

FNF Scotland had written to the committee http://tinyurl.com/je7p2s6   in support of Mr Currie's petition but also drawing to its attention the number of petitions in the same area that had been lodged during the current parliament since the 2011 Holyrood election.

Video http://tinyurl.com/jctuv48 of the committee discussion on the issue can be seen here, beginning at 45'00".

In the discussion after Mr Currie's evidence committee member, Hanzala Malik, said, "Children shouldn't have to suffer the indignity of being separated from one parent or another unless things are proven in court. Accusations come fast and furious - quite outrageous accusations. I agree with the petitioner and petitioners who have come to us. And if the petitioners are happy we can perhaps put them all together so we can ask the government to look at this more seriously."

Committee convener, Michael McMahon, said, "We do have to look at all these in the round ... We are building up a picture here of areas in which we would like to see the government answering in terms of family law."

Kenny MacAskill, former Justice Secretary, agreed. He said, "I do think we are at a juncture where we've moved on considerably from previous investigations both in parliament and in legislative change. We now have a change to the court system. We have changes to appointments and specialisations on the shrieval bench. We have pressure upon the legal aid board. ... I do think we're at a juncture where the government should be seeking to bring it all together rather than looking at any one bit individually. This is the time. The government should be asked to bring the current changes together and consider where we go."

FNF Scotland national manager, Ian Maxwell, said, "This is a very encouraging development. In our response to the committee on Mr Currie's petition we set out our view that Scotland's children and families will benefit from a broader change in prevailing culture that looks for the positives in parenting after separation. This is far better for children than the current adversarial approach by which one parent's time with his/her children is “won” at the expense of inflicting damage on the other.

It is a tribute to the perserverance of all the petitioners in recent years that the message is getting home that the law has been overtaken by social and economic changes within families in Scotland and by government policy which now recognises more clearly the obligations of both parents to promote the wellbeing of their children and also their children's right to family life."




If the kids aren’t there for contact, is it a contempt of court?

One of the recurring questions raised at group meetings is what a non-resident parent can do when he arrives to collect his children for court ordered contact time but is told, “They’re not coming” - though not always expressed so politely.

It can be extremely painful. The father may have been building up to seeing his kids again for weeks and sometimes months during protracted legal proceedings.

It can be extremely frustrating. The explanation given for their non-appearance can be trivial or irrelevant or, most hurtful, “They don’t want you.”

It can also be dangerous. The non-resident parent is very exposed - usually on the doorstep of his ex-partner’s home. We know of many instances where a raised voice there - even in pain or frustration or in response to foul and aggressive language - has led to a weekend in the cells and the threat of domestic abuse prosecution. Even if no prosecution follows or there is no conviction the fact of an arrest is likely to be brought before the sheriff at the next child welfare hearing.
It doesn’t always happen on the doorstep. We have seen the foulest of texts telling the non-resident parent that the contact isn’t happening and “there’s nothing you can do about it”.  We advise not to text straight back.
Police officers say they don’t have any choice in the matter and that failure to produce the kids even where there is a court order is not their business. It can feel unfair and grotesquely discriminatory that one victim of “coercive control” may be handcuffed and taken away in the car that raced up with blue lights flashing while the other victims watch through their bedroom window.
“Surely it’s contempt of court?” we hear. “Why don’t the sheriffs take it seriously instead of ordering yet another child welfare hearing?”
A recent judgment in Dumfries Sheriff Court sets out clearly the legal tests that must applied for a contempt – or “failure to obtemper” - to be proved. 
However, in finding the mother in JDE v SDW guilty of contempt, Sheriff Jamieson also addressed the apparent failures of the social worker and health visitor involved properly to understand the law and the significance of a court order.
He also addresses the obligations in law of the parent with care to “create a climate of opinion in which they [the children] view their father in a reasonable and well-disposed light” and not to leave it to the child to make the decision “without positive guidance and genuine encouragement”.  These duties often seem to come as news both to a parent who views control of contact and the relationship between a child and non-resident parent to be within her discretion and to professionals who see their job as supporting her but who rarely even meet the non-resident parent far less build a relationship with him.
Tests for contempt
Sheriff Jamieson set out the history of the case in which a contact order had been made in August 2011 in respect of a child born in 2006. 
The mother had raised an action to reduce contact to nil but another sheriff rejected it in September 2013 and reaffirmed the original contact order.  However, the child was not produced for the ordered contact on any occasion after August 2013 even though the father drove to the child’s home for each ordered contact. He was advised by text that The child was not going for contact.
The father raised an action for contempt of court and evidence was led on the matter in April 2014.
The sheriff cited the legal tests for contempt of court. “The pursuer [the father] has to prove beyond reasonable doubt:
1) The defender was aware of the court orders;
2) She refused to obtemper them;
3) Her refusal was wilful; and
4) She had no reasonable excuse for doing so.”
The defender [the mother] admitted under oath points 1 – 3. The issue for the sheriff to determine was therefore whether the mother had demonstrated that she had a reasonable excuse.
Sheriff Jamieson made it clear he did not find credible any of the reasons given by the mother.
He criticised her attempts to draw the child into making decisions on whether to attend for contact by inviting him – at the age of 7 – to make conditions based on unsupported allegations she had made about the father. “All of this was highly improper. If J [the child] was ‘distressed’ by anything it is likely to have been by being put into a position too important and beyond his level of maturity to understand.”
Advice by social worker and health visitor
Sheriff Jamieson expressed concern about the advice given in a letter by the social worker to the mother that as she had parental responsibilities and rights to act in her son’s best interests  she was entitled to withhold contact if she “felt” contact was “emotionally distressing”. 
Sheriff Jamieson set out that such advice was legally incorrect. “It is in my opinion a matter of regret and concern that any social worker should have written such a letter. He should have advised her to return to the court to have contact reduced to nil based on these concerns, not to abrogate to herself based on her ‘feelings’ to decide whether she would be ‘justified’ in refusing contact despite the court order.”
In mitigation of the social worker’s misstatement of the law and the mother’s duty to obey a court order Sheriff Jamieson found that it was unclear whether the mother had told him that she had already raised an action to reduce contact to nil and that it had been refused by a sheriff who found that it was in the best interests of the child that the contact should continue.
Sheriff Jamieson also found “the letter from the defender’s health visitor "… to be unhelpful as it was based largely on the defender’s concerns rather than any independent assessment.”
In December 2013 the health visitor had suggested a ‘safeguarder’ be appointed to take J’s views. 
Sheriff Jamieson repeated that he found the evidence of J’s distress not to be credible but with respect to the health visitor said, “It seemed to me to miss the point that Sheriff Kelly [the sheriff who had refused to reduce contact to nil] had already determined that contact should continue.”
Sheriff Jamieson sentenced the mother to 21 days imprisonment, suspended on condition that she restore contact to the pursuer in terms of the court orders.