Where one parent fails to comply with a court order mandating contact between a child/children and their other parent, there is always potential for an authoritative pushback by the courts against the parent in breach.
In the recent case of CM v SM 2017 SLT 197, two proof diets (full hearings) took place between January and August 2013. One proof concerned a section 11 order in terms of the Children (Scotland) Act 1995, while the other concerned contempt of court. In the latter, there were 17 allegations of contempt by failing to make a child available for contact in terms of a court order. Of the 17 allegations, the Sheriff found the Defender guilty of contempt in relation to 5, insofar as the failure to make the child available was wilful, inexcusably careless or constituted a flagrant disregard for the authority of the court.
It should be noted that the Defender’s solicitor made submissions explaining the circumstances for missed contact, however the Sheriff held that these submissions did not meet the threshold of evidence (amongst other things, they were not properly admitted as such). Therefore these submissions could not be used to mitigate the Defender’s failures. Eventually, the Defender was sentenced to the maximum penalty of 3 months’ imprisonment.
Fortunately for the Defender, on appeal, the finding of contempt was recalled and the sentence was quashed. Amongst other things, the Defender’s appeal focused on the proposed miscarriage of justice of having the contact and contempt proceedings running concurrently and before the same Sheriff. Moreover, the contempt proceedings developed over time, with new allegations being heard which had not been incorporated into the written pleadings submitted at the outset of the case. This created disorder during the latter stages of proceedings, since the cause advanced on incomplete pleadings.
While the Defender escaped condemnation for the failure to obtemper a court order, this case, and others, reveal the very real consequences of disobeying a court order. The lessons of this case and others are simple and grave: obey the Sheriff’s judgement, or face potential criminal sanctions.
If you would like to discuss any matters relating to contact, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk