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Entries in enforcement (4)


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.


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.”


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.