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Entries in Court (6)


Courts getting tougher on enforcing contact?

One of the most common questions to FNF Scotland is:  "What happens when a contact order has repeatedly been broken?"

One recent case received press coverage because the mother had been a contestant on the TV programme The Apprentice.

Sheriff Fiona Tait at Perth Sheriff Court gave Sharon McAllister six months to comply with court orders in a child contact case or face additional fines and a six-month prison term.

Sheriff Tait said Ms McAllister's behaviour was "a particularly bad contempt of court.”

The court heard there had been a series of problems between Ms McAllister and her son’s father which meant she had not been able to maintain contact without incident.

Ms McAllister, who now lives in Hertfordshire, was ordered to return £20,000 to the Scottish Legal Aid Board.  She was found guilty of contempt after she defied court orders to hand her son over to his father on a number of occasions.

Sheriff Tait warned her that if she did it again she could face a prison term and deferred sentence for six months for good behaviour.

She told Ms McAllister: “The options are a custodial sentence, a financial penalty or for the court to defer matters.  I’m minded to defer sentence for six months for you to be of good behaviour and show you will obtemper to an order made by the court."

“The sentencing options will remain live to the court for that six-month period. What I want is no further repetition of your failure.”

The case had been called in court more than 30 times in the past four years with Ms McAllister receiving legal aid to defend the civil action brought by her former partner.

Her former partner said: “There were plenty of opportunities for us to get around the table. It’s almost like her pride gets in the way – she can’t possibly be seen to lose.”

This use of a deferred prison sentence isn't restricted to such high profile cases.  We have heard of at least one other recent example in south-west Scotland, and hope that all Sheriffs are prepared to uphold contact orders in this manner where necessary.  


Expert witnesses in family cases

A useful guide to the different types of expert witnesses which could be involved in family law cases has been published by the Law Society of England, in connection with new rules on the use of expert witnesses. 

While the new rules don't apply in Scotland, the notes in this guide provide a helpful indication of what issues different professionals can cover and likely questions that can be asked of them.

The guide outlines the specialisms of various types of expert including clinical, forensic and child psychologists, child and adult psychiatrists and independent social workers.

Expert witnesses are only likely to be called for in a small number of cases, but if this is being considered it is very important to identify the most appropriate specialist and also carefully consider what questions are asked.


Court order seeks to overcome resistance to contact

In a recent English court case, a mother who repeatedly resisted a contact order has been threatened with reversal of residence. 

The father's contact with the two sons (10 and 8) had ceased in August 2010.  Although some successful court-ordered contact was observed in 2011, the mother disengaged with the court.

The Judge found that the mother did not believe that the children needed a relationship with their father or the wider family and was not supporting contact. Furthermore, he was "convinced" that the children loved their father and wanted to be able to see him, but were being prevented from showing their feelings or acting on them.

On balance it was concluded that the children's welfare would be better served by living with the father, unless contact could take place successfully. The Judge took into account that it would be contrary to the children's interests to learn that the sort of manipulation they had been caught up in might succeed.

The mother will be given one more opportunity to facilitate contact. An order for two periods of residential contact has been made, but if this contact does not take place the children will live with the father.


Court changes: case management and closures

Responding to proposals to introduce a mandatory case management hearing in family court proceedings involving section 11 orders (contact and residence), Families Need Fathers Scotland comments that case management needs to start at the outset of any court hearings, not just when the case is heading to a proof hearing.


We also point out that new procedures shoul acknowledge that people who represent themselves in court (party litigants) should be acknowledged in the new court rules. The procedures, forms and language used in court proceedings should be transparent and obvious for these party litigants and plain English information should be made available at all times, including when Sheriffs announe the outcome of hearings.


A consultation has just been announced about closure of some of the smaller Scottish courts.  Sheriff courts in Alloa, Cupar, Dingwall, Arbroath, Haddington, Stonehaven, Dornoch, Duns, Kirkcudbright and Rothesay are facing closure.


Concentrating services on the larger courts may make it easier to introduce specialised family sheriffs in all Scottish courts but it will be more difficult for people in the more remote parts of Scotland to attend hearings, making it even more important to streamline the management of court processes.


Users' guide to Bar Reports

The first user's guide to Bar Reports has been published by Families Need Fathers Scotland as part of a campaign to introduce national standards and oversight of bar reporting (see Press Release).

In Scots law where an application for contact or residence cannot be agreed between former partners (or others applying for contact such as grandparents or wider family members) a Sheriff or Court of Session judge may order a 'Bar Report' to help him or her get a better sense of how to identify the best arrangements for the welfare of the child.

The Bar Report provides further information about the circumstances of a child and the proposed contact or residence arrangements that have been requested. Experience shows that the recommendations at the end of a Bar Report are relied on heavily by the Sheriff in reaching a decision.

FNF Scotland is not seeking to alter the way Bar Reports are carried out to favour fathers though non-resident parents, mostly fathers, do feel they are at a disadvantage in the process.

The purpose of the guide is to make the process more transparent and accessible to those involved in child contact actions. It is not a guide to coach parents through how to get a favourable Bar Report but, being better informed, it may help them represent their interests and the realities of the relationship with their children more effectively.