22 Dec 2011

Contempt of Court in Family Proceedings

Contempt of Court in Family Proceedings

Leah Bowman, Family Lawyer, discusses recent developments in issues of Contempt of Court in respect of family proceedings.

Leah Bowman, Family Lawyer, discusses recent developments in issues of Contempt of Court in respect of family proceedings.

It is widely accepted that children will generally benefit from the continued involvement of both parents post separation. However, separation is a time when emotions often run high for all concerned.  In certain situations this can result in the inability of parents to distinguish between their personal feelings towards their former partner and the best interests of their children in having both parents continuing to play an active role in their lives.  

Court Order

For some separated parents, it may be necessary to obtain an order of the Court to ensure their continued participation in their children’s lives.  More often than not, this will simply mean an order for contact, so that the non-resident parent can be sure that they will continue to see their child.  In making an order for contact, the Sheriff is obliged to have the best interests of the child as his paramount consideration.  Once an order of the Court has been granted, both parents must obey it.  The non- resident parent must be prepared to exercise contact with the child or children on the days and times stipulated.  The resident parent must have the children prepared for contact and actively encourage contact to take place.  Difficulties often arise where the resident parent does not obey the terms of the Court order.  The non-resident parent then has the option to raise proceedings for failure to obtempter a court order, more commonly called ‘contempt of court’. 

Contempt of Court

In these circumstances, contempt of court occurs when the resident parent wilfully chooses to disregard the decision of the court and refuses the non-resident parent the contact that they have been granted.  This can be an example of the resident parent allowing their own feelings about the non-resident parent to trump what the court has decided to be in the best interests of their child. 

Punishment

Wilful non-compliance of a court order, if found to be contempt of court, can be punished by a maximum sentence of three months imprisonment, a fine at level four of the standard scale (£2,500) or both.  Historically, the Courts have been reluctant to impose penalties towards the higher end of the scale on such parents; in particular they have been reluctant to imprison parents found to be in contempt of court as a result of a failure to obey an order of the court.  In fact it has been said that “the courts power to punish contempt should be exercised with the greatest of care and the wisest discretion”[1]. This, of course, can leave the parent being denied contact with the feeling that the resident parent is able to do as they please and that the legal system is conspiring against them.  It would also suggest that the Courts are tolerant of a parent purposely choosing not to comply with an order.  However, a case decided this year in the Court of Session has seen a tougher stance taken by the judiciary and some hope resurrected for the non-resident parent.   In this case, a mother had wilfully failed to comply with a court order for contact awarded to the father.  This had been on-going for years.  The mother had continuously denied the father contact with the child, in terms of a Court order.  At the first instance the mother was found by the presiding Sheriff to be in contempt of court and was sentenced to two months imprisonment.  The mother thereafter attempted to appeal against this decision.  The case reached the Inner House of the Court of Session, where the period of imprisonment imposed by the Sheriff was upheld. This is the second time in the last two years that the Court of Session has upheld a period of imprisonment imposed due to contempt of court being found in relation to family proceedings.  This tougher stance is generally welcomed by Solicitors and client’s alike.  It remains difficult to give precise advice on the consequences of wilful non-compliance.  However, it is hoped that when this is next put to the test in the Sheriff Court, the presiding Sheriff will be much less tolerant towards the parent wilfully choosing not to comply with an order of the Court. 

Legal Advice

Any parent struggling to maintain an on-going relationship with their child after separation should obtain legal advice at the earliest possible opportunity.  Generally speaking the longer that a parent goes without contact, the more difficult it can become to re-establish contact. 

Of course, not all separations result in hostility and many separated couples are willing and able to amicably discuss and agree on future care plans for their children. It is wise for these parents to consider entering into an agreement formalising the future care plan for their children.

Leah Bowman, Solicitor

 

[1] Sheriff MacPhail, Sheriff Court Practice, p35, 2.24

 


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