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Entries in contempt of court (5)


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.


How a court can enforce contact orders

Following hard upon recent Scottish and English judgements concerning malicious allegations, child abduction and contempt of court, a judgement this week by HH Judge Newton in Manchester shows how essential it is for courts to take quick and firm action to restore contact arrangements.

FNF Scotland hopes that this marks a renewed determination by judges and sheriffs to hold parents firmly and swiftly to account when contact and residence orders are wilfully broken or undermined. 

In this case, a court order was made on 25th May 2015 for the Swedish-based father to have regular periods of direct and indirect contact with his children in England and to ensure that the children maintain their links with the Swedish part of their heritage.  The father was also trying to maintain their contact with the maternal grandfather, from whom their mother was estranged.

The case returned to court on 26th June 2015 because on 22nd May a planned ten-day contact visit in Sweden between the children and their father did not place as the result of an incident at Manchester Airport.  On 10th June the mother wrote to the court indicating that she was not intending to facilitate further contact between the children and their father.

The incident at Manchester Airport involved the mother and children turning up at 6pm for a 6.30 flight to Sweden (boarding closed at 6.10).  The resulting fracas as the father tried to board the flight with his children led to police intervention and a missed flight.

Commenting on the parent's accounts of this incident and other difficulties since the contact order, the Judge said: "I found the mother wholly unconvincing, both generally and specifically in relation to what happened on 22nd May 2015. Put bluntly, I am satisfied that she has lied.  The father was careful in his evidence. His warmth and concern for the children was readily apparent. I accept his evidence."

The context, summarised in the first paragraph of HH Judge Newton's findings, is regrettably common: " I am persuaded that, essentially, the mother does not value the father's contribution to the lives of the children and, in reality, would much prefer to be able to get on with life with her new husband and baby without what she sees as the intrusion of contact arrangements."

The judgment relates various ways in which the mother had sought to undermine contact, noting that " ... on the father's visits, whether in the UK or Sweden, the children are sent in, literally, the clothes in which they stand up and with their passports in their hand: no change of clothing, no favourite toys, nothing to cuddle, no books, not even a toothbrush. When the father visits the UK, he is obliged to bring those items with him on the plane from Sweden. The same situation applies even when the children stay with him for four weeks during summer holidays. The message this sends to the children as to the totally separate existences they have with each parent is deeply unfortunate and unhealthy."

Judge Newton comments: "This is a father who has much to offer his children. He has proved remarkably committed, making, I accept, 37 flights from Sweden to the UK last year alone to see his children. I find the mother's objections to contact ill-founded. Were I to accede to her submissions, it would give her yet further opportunity to attempt to undermine the children's relationship with their father and it would be extraordinarily difficult thereafter to reintegrate the father into the lives of the children."


Ethan Minnock's father drops contempt proceedings

The father of the child taken into hiding by his mother to avoid a court ruling has withdrawn his application for the mother to be imprisoned.

Roger Williams was commended in the latest judgement on the case for showing "a strong and commendable display of parental responsibility plainly based on the best interests of Ethan. He does not wish Ethan to be exposed to the continuing publicity that Ms Minnock has caused."

Judge Wildblood also condemns the utterly irresponsible actions of the mother, who could have faced a sentence of 28 days imprisonment:

"It would be patently wrong to suggest that Ms Minnock was so overpowered by protective maternal instinct that she was driven to behave in the way that she did. Her behaviour was manipulative, attention seeking and truculent. It caused immense distress to many. It caused a very large amount of public money to be wasted."

"The one thing that this mother should not have done is to remove Ethan from his home environment and family life and take him into hiding. Her actions were manifestly contrary to the welfare of her child and were a product of her own self focus. They had nothing to do with what was best for this child."

Families Need Fathers Scotland commends this father and hopes that he and his son can resume normal life together.  We also hope that the mother can resume her contact with Ethan, and that she and her family have learned from their mistakes.

As in the recent imprisonment of a mother, Sharon McAllister, in Perth for defying child contact court orders, a broader purpose may be served by this case if it reminds parents with care that a contact order (Child Arrangement Order in England) is not optional.

We feel the courts should act more speedily on failures to obey orders that have been given after due consideration of the best interests of the child.

Courts should remind both parents that it is their duty to actively promote a good relationship between the children and their former partner. There is a raft of research that shows children do better in all aspects of their life when both parents are fully involved in supporting them. Estranged partners don't have to like each other as individuals but they should respect each other as parents.

That's what 'putting the children first' means.”


FNF Scotland comment on 'Apprentice' mother gaoled for contempt of court

A former candidate in the 'Apprentice' reality TV series  was sentenced to 3 months in gaol at Perth Sheriff Court yesterday for failing to obey its orders for contact time between her son and his father. The Dundee Courier report is at tinyurl.com/ptfe6qr.

Ian Maxwell, National Manager of Families Need Fathers Scotland, said: “It gives us no pleasure to see Ms McAllister receive a prison sentence. However, it may serve a purpose if it reminds parents with care that a contact order is not optional. We see examples every week where the intentions of the court are frustrated when children are not presented for their specified time with the non-resident parent  for the flimsiest of reasons. This damages the relationship between the children and their non-resident parent, usually the father, and creates further tension between the separated parents.

The sheriff in Perth gave many warnings before finding Ms McAllister in contempt. We feel the courts should take a grip much earlier of these failures to obey orders that were made after due consideration of the best interests of the child. Courts should remind both parents that it is their duty actively to promote a good relationship between the children and their former partner. There is a raft of research that shows children do better in all aspects of their life when both parents are fully involved in supporting them. Estranged partners don't have to like each other as individuals but they should respect each other as parents. That's what 'putting the children first' means.”


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.