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Entries in judgements (4)


Judgements: surname dispute and communicating decisions to children  

Two recent judgements show how family sheriffs take difficult decisions to resolve family disputes.  

In Edinburgh, Sheriff Holligan grappled in MRG v MD with a disagreement about whether two children should use their father's surname, as on their birth certificates and passports, or their mother's surname, which is being used in her house and at the doctor and their nursery.  

The children's mother, who is the main carer, registered statutory declarations in the Books of Council and Session that they should be known under her surname.   The children's father, who has regular contact with them, uses his surname for them when the girls are with him.  The children, aged 5 and 3, are known by their first names on a day-to-day basis and have little awareness of this dispute.  

After discussing various aspects of the use of surnames in Scots Law and stating that he did not regard the registration or the statutory declaration to be determinative, the sheriff recommended that the children should use both surnames, the father's followed by that of the  mother.  This Solomonic judgement will no doubt be used to help settle future such disagreements, unless superseded by a decision in a higher Scottish court.

In Glasgow, the other Scottish court with specialist family sheriffs, Sheriff Anwar has issued a note in Patrick v Patrick.  This case concerned a father's request to have contact with his children following a bitter and acrimonious dispute between the parents. The sheriff concluded after hearing 11 days of proof that it was in the best interests of the children to have a relationship with their father and granted him indirect contact.  She did not consider it to be in the children's best interests for there to be a detailed written assessment of the issues raised in the case, as this risked undermining their sense of identity and self-worth.

At a further hearing regarding the arrangements for contact, it was agreed that the father would undertake the Triple P parenting course, that a psychologist would work with the children to assist them to develop a relationship with their father, that both parents would work with family therapists and then take part in mediation.

A clinical psychologist Dr Khan had reported to court on the entrenched views of two of the children that they didn't wish to see their father.  Following the sheriff's decision in favour of contact, Dr Khan was asked to communicate this decision to the children and help them understand why the court had not heeded their wishes.  Sheriff Anwar wrote a letter to children to be used by Dr Khan to explain why she made this decision, and the text of the letter is included in Sheriff Anwar's note about the case.

The Sheriff's decison to write a letter of explanation to the children raised much interest in the press and has been widely discussed within Scottish Family court circles.  It follows two recent examples of English family judges writing letters to children.  Some sheriffs have expressed alarm that they will now be expected to include letters to children in all of their family cases, but this is only likley to be needed to inform children when a decision cuts across their wishes.  

It is important that Scottish judges work hard to find better ways to obtain the views of children in such cases.  But it is also important that these views are considered alongside all the other circumstances, in order to decide whether it is still in their best interests to retain contact with both parents.

Families Need Fathers Scotland welcomes this move by Sheriff Anwar to follow up her decision with various measures including the children's letter in order to try and make it easier for the whole family to move on from a high conflict court case and learn from past mistakes.  


Publication of family court judgements

The selection of academics and campaigners who gave evidence to the recent Scottish Parliament Justice committee 'post legislative scrutiny' of the 2006 Scottish Family Law Act were agreed on at least one matter - urging that more judgments should be published on the Scottish Courts website.

The witnesses, including Families Need Fathers Scotland and Scottish Women's Aid, agreed that the present situation in which only a small proportion of the decisions made in family law cases are published and largely at the initiative of individual sheriffs inhibits the development of a corps of knowledge that would not only keep researchers, legislators and other judges informed of judicial thinking but also help members of the public get a sense of what they can expect from the courts. 
FNF Scotland reads the judgments in those family cases that are published to learn how the courts are handling crucial issues. There have been extremely interesting judgments recently.  
In one a sheriff set out detailed reasons for refusing a mother's application to relocate to the other end of the UK because it wouldn't be in the interests of the children and also comments robustly on the admissibility of expert evidence in such cases.
In another a Court of Session judge criticised council social workers for attempting to reduce a mother's contact to virtually nil "because, having settled upon permanency as being appropriate from as early as 2009, they shut their eyes to any other possibility, viewed any behaviour by M [the mother] which did not fit with their plans as hostile and not to be trusted and, by applying a somewhat twisted logic, treated that behaviour as proof of the correctness of their determination to proceed with their plans."
In a third a sheriff in Moray warned a mother that she "needs to examine her motives.  She needs to examine her attitude.  She needs to reflect on what is truly in the interests of the child. ..." in attempting to reduce the fathers contact to zero.
But we are aware these published judgments represent only an extremely small proportion and rather random sample of the many family cases heard in the sheriff courts each year.
Most of the family cases raised in court in any year - 13,600 in 2014-5 - are settled before the stage at which a judgment is issued (2014-15 civil justice statistics). 
The great majority of family cases are recorded as divorce or dissolution  However, the 2014-15 tables list 2,582 under Parental Rights and Respnsibilities including 1,281 actions for contact and 729 actions for residence raised in the Sheriff Courts. 
The statistics give only a limited picture. They under-estimate the total number of contact and residence issues  raised in the courts. This is because only the principal crave in any court action is counted.  If the principal crave, for example, is for divorce the 'ancillary' contact and residence issues are likely to be missed by the present system for capturing data.
The tables also give a breakdown of disposals dismissed, defended and undefended, and granted in favour of the pursuer but they can't distinguish which parent is the pursuer or the extent of the contact granted in the spectrum from equally shared care to supervised or indirect contact. The Scottish government statistics service has been working on improving 'data capture' with the Scottish Court Service.
Although not every judgement contains new circumstances or significant developments of judicial interpretation we feel that there is a public interest to be served in the publication of all the family judgements in the new Sheriff Appeal Court and a more systematic approach to identifying informative judgments from the sheriff courts rather than just those which are considered noteworthy by the sheriff or judge concerned.
The judgment is already issued to the parties. Of course the text would have to be anonymised to protect the interests of the children involved before it is uploaded to the Court Service web site. That doesn't seem a major additional burden.
In order to improve case management, we need more information on what is actually happening, so that sources of delay can be identified, and inconsistency in court practice across Scotland can be avoided.
Routine publication of judgements will help to provide this information. It would also be helpful to publish more comprehensive statistics on issues which relate to case management, such as the number of child welfare hearings per case, and the number of court days taken up in family proof hearings.




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."


Appeal court clarifies breach of the peace laws

A man found guilty of committing a breach of the peace after approaching his former partner at her parents’ home and allegedly “placing her in a state of fear and alarm” has won an appeal against his conviction.

The Criminal Appeal Court judgement states that the incident was “not sufficient to alarm ordinary people or to threaten serious disturbance in the community”.

The man had  arrived at the home of his wife's parents just as she and her mother had parked the car after returning from a shopping trip. He approached her, placed his hand on the window of the car and knocked a couple of times, and said in a normal tone of voice that he wanted to talk. The complainer's mother told him to go away and he said, 'I'll get back in the car'.

Delivering the opinion of the court, Lady Paton said: “Taking into account all the factors relied upon by the Crown, including the complaint of a serious earlier assault and its effect on the complainer, we have reached the view that what occurred on 22 November 2012 did not amount to a common law breach of the peace as defined by the authorities.

 “Had there been, for example, shouting, swearing, threatening words or behaviour, attempts to force open the car door or to get into the car in some other way, or simply a greater persistence in attempting to talk to the complainer, it would in our opinion be arguable that what was occurring would be likely to alarm ordinary people and to threaten serious disturbance to the community because inter alia they might be alarmed by the behaviour but, more importantly, would fear for the complainer's safety.“

But that is not what occurred in this case. There was an apparently normal attempt to speak to the complainer. When that attempt was rebuffed and the appellant was told to go, he did in fact walk away from the car in which the complainer was sitting, get into his own car, and drive off. The incident did not therefore escalate, as it could have done, into something which might well have constituted a breach of the peace.

FNF Scotland welcomes this clarification of the law, while re-iterating our advice to anyone involved in a family or contact dispute to avoid any situation in which their behaviour could be alleged to be threatening or alarming.