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NOTE (No.2) BY SHERIFF GEORGE JAMIESON IN THE CAUSE J D E v S D W

2014SCDUM32

 

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

 

Court Reference Number: F32/09

 

 

                                                                                                     NOTE (No. 2)

                                                                                                               By

                                                                                         SHERIFF GEORGE JAMIESON

(Regarding contempt of court by the defender)

    In the cause

 

                                                                        J. D. E                                                  PURSUER

 

                                                                                                            Against

 

                                                                        S. D. W.                                              DEFENDER

 

 

                                                                        ----------------------------------------------------------------

 

 

 

 

DUMFRIES                                         18 July 2014

Act: Finlayson                                                            Alt: Powell

 

The sheriff, having resumed consideration of the cause, and having regard to his interlocutor and accompanying Note dated 29 April 2014:

 

Finds in respect of the hearing on contempt of court on 29 April 2014 the following facts admitted or proved:

 

  1. The pursuer is the father and the defender the mother of J. J. E. W. born 13 October 2006.
  2. On 11 August 2011 the sheriff made a contact order finding the pursuer entitled to contact with J for the times stated in that order.
  3. On 19 September 2013 the sheriff refused the defender’s motion to reduce contact to nil. He confirmed the contact order made on 11 August 2011 subject to a variation “directing that the next two contact periods be on a non- residential basis on each alternate Saturday from 10:00 am until 4pm, thereafter reverting to the original contact arrangements, and that until further order of court”.
  4. On 19 December 2013 the sheriff inter alia decided that the order of 19 September 2013 was a determination of the defender’s minute to vary the contact to nil and it was not open to him to revisit that decision absent a new minute to vary by the defender based on a further intervening change of circumstances. He refused to sist proceedings in respect of the defender’s minute to vary contact to nil. The defender appealed that decision but later abandoned the appeal.
  5. The last time the pursuer had contact with J in consequence of the order of 11 August 2011 prior to 29 April 2014 was on the weekend from 2 to 5 August 2013. On that occasion the parties agreed to extend the contact due in terms of the order from two to three nights for that weekend.
  6. The defender did not permit the pursuer to have contact with J thereafter in terms of the order of 11 August 2011, the subsequent order of 19 September 2013, or by agreement of the parties.
  7. Nonetheless, the pursuer continued to drive from his home to the defender’s home on a number of weekends for contact after 19 September 2013. On each of these occasions he received emails saying J was not going for contact. He was not given contact with J on these occasions.
  8. The pursuer visited J at J’s school on 11 October 2013, two days prior to his seventh birthday. J smiled at the pursuer. He looked a little surprised the pursuer was there. The pursuer gave him a toy frog. Throughout the first half of Assembly J looked round, waved his toy in the air a few times and appeared to be quite happy and excited. The defender took J out of Assembly. As the pursuer was leaving town that day, J and his friend ran up the pursuer in the car park. The pursuer told J he had a birthday card and presents for him. J replied: “Wow” and asked they be left at home. He told the pursuer he would call his toy frog “furry froggy”.
  9. The pursuer thereafter saw J from a distance at J’s school’s “Comic Relief” day; and also spoke with him on the telephone on 25 December 2013.
  10. Apart from these three occasions, none of which were in terms of the contact orders, the pursuer did not have contact with J between 5 August 2013 and 29 April 2014.

Finds in respect of the hearing on contempt of court on 29 April 2014 it proved in fact and in law:

 

  1. The orders of the sheriff dated 11 August 2011 and 19 September 2013 have remained in force since 19 September 2013.
  2. The defender was aware of the terms of the contact orders dated 11 August 2011 and 19 September 2013.
  3. She wilfully refused to obtemper those orders from 19 September 2013 until 29 April 2014.
  4. She had no reasonable excuse for doing this.
  5. She was in contempt of court because of this.
  6. She was liable to be punished therefor.

 

 

 

 

 

 

 Sheriff George Jamieson

 

 

 

 

 

NOTE

 

  • [1]The evidence at the hearing on 29 April 2014 was recorded by short hand writer. I ordered the shorthand notes to be transcribed. That has been done. The transcript will remain in process as a record of what was said at that hearing to help avoid any disputes thereanent in the future.. My findings in fact are not verbatim accounts of what the pursuer, defender and defender’s mother said in their evidence; the parties, or the court on any later occasion, can consult the transcript for that. My findings in fact record the salient points in the witness’ evidence I accepted as credible or reliable so far as relevant to the court’s determination that the defender was in contempt of court as set out in my interlocutor of 29 April 2014. Any piece of evidence I rejected as not being credible or reliable, or for any other reason, does not and indeed cannot form the basis of any finding in fact I have made. In particular, I have not been able to make findings of fact as to what Sheriff Kelly said at the hearing before him on 19 September 2013 insofar as parties were at odds as to what he said at that hearing - because Sheriff Kelly did not prepare a Note setting out his findings and reasons for those findings on 19 September 2013 and I therefore have no reliable account of what he might have said on that occasion. I have not made findings in fact as to disputed evidence I have rejected; it is not generally appropriate to find in fact something the court has rejected ( there are exceptions, such as in relation to “reasonable excuse”); the parties, or the court on any future occasion, can take it that if I rejected any part of their evidence, it was rejected by me as not being credible or reliable unless I have given some other explanation in this Note for its rejection(such as the explanation I have just given about the pursuer’s and defender’s recollections of what Sheriff Kelly may have said on 19 September 2013).
  • [2]I have not however entered into an exhaustive examination in this Note of my reasons for so finding (some brief reasons appear hereafter). But if there were disputed issues of fact, I assessed the witness’s credibility and my findings in fact reflect the position I found as the more credible. I have not generally cross-referenced my findings in fact to the transcript; exceptions include direct quotations from the witness’ evidence.References herein to my “findings in fact” include my “findings in fact and in law”.

     

  • [3]The defender’s reasons for refusing contact are set out in the transcript of her evidence. Insofar as they related to events after 19 September 2013, she said she had a discussion with J about a “meeting” with the sheriff at which she and J’s dad “thought it would be a good idea to see daddy on a Saturday” (43D-44B). J was said to have reacted “strongly” to this and to have become distressed. He told her his dad “attacks and blames. He attacks and lies about people and makes me feel like an idiot”. She said she tried again at a later time to persuade J to go for contact but J again had a “strong reaction”, telling her “to give him a chance and similar things he had said the day before” (45E). In October (2013) she had a “discussion” with J and asked him how do “we” get “daddy to promise he would stop talking badly about mummy and granddad”. She said to him: “how do you feel darling?” (46E). He was said to have replied that he felt “very unsafe” and started talking about death. He was afraid “dad will try and kill me” (47B).

     

  • [4]She said she took advice from a social worker who told her she had “the responsibility to decide whether or not I should send him” (48B). She said J did not want to go for contact (49A).

     

  • [5]She said in cross-examination Sheriff Kelly didn’t “reaffirm” the earlier order of 11 August 2011: “ I got the way the Sheriff was saying the contact had to continue, but he left it open and acknowledged there were problems and if anything else happened, to come back to him”(67A).

     

  • [6]One of her concerns was that the pursuer talked adversely about her and J’s grandpa (accusing him of hitting J). She said she discussed with J in February (2014) “the idea of a supervised visit to get back his confidence”; in this context, she said to J: “If we get dad to promise not to talk about mum and grandpa” (83C).

     

  • [7]The defender’s mother’s evidence was in similar vein to the defender’s evidence. She said J had directly expressed worries to her such as daddy behaved in a “peculiar” way; “said things against the family”; encouraged him to “tell fibs” (87D); and “makes me feel bad” (88C). She claimed that “each time” J saw his father, “he has been distressed” (93E).

     

  • [8]Although I ruled as inadmissible the affidavits at 6/2 and 6/3 of process concerning J’s alleged “distress” at his father’s visit to his School Assembly on 11 October 2013 (30C), I took into account the pursuer’s evidence that after about 20 minutes he “noticed J looking across at his mum and then me and put his fingers to his forehead” looking “a little bit confused” (10C). Given that J had been denied contact with his dad I am not surprised he would have been confused by this visit. His “distress” might be attributable to that confusion rather than any desire not to see his dad. When he saw his father, he was quite happy and he enjoyed getting the toy frog (confirmed by the defender’s mother (95E)).

     

  • [9]I found the letter from the defender’s health visitor at 6/5 of process to be unhelpful as it was based largely on the defender’s concerns rather than any independent assessment; though dated 17 December 2013 and suggesting a “safeguarder” be appointed to take J’s views, it seemed to me to miss the point that Sheriff Kelly had already determined on 19 September 2013 contact was to continue. It was a matter for Sheriff Kelly whether to have taken J’s views at that stage.

     

  • [10]I did not consider it appropriate to take J’s views in this application for contempt of court. Such an application is not designed to re-open and review a contact order. That had already been done by Sheriff Kelly. Its purpose is to determine, according to the rules discussed below, whether a party is in contempt of court for not obeying the order. Since this is not a section 11 application, the court is not obliged to have regard to the child’s views.

     

  • [11]I did not believe the evidence given by the defender and her mother that J had been speaking to them as they claimed. I do not believe a 7 year old child would talk in the manner they claim. I am of the opinion they were, so to speak, putting their own concerns into his mouth, such as for example the defender’s claim J said to her his dad “attacks and blames. He attacks and lies about people and makes me feel like an idiot”. That seems to me to be the way adults, not young children speak. (See also 41C-42A.)

     

  • [12]It is not accepted by the defender or her mother that J’s paternal grandfather may have physically chastised him. I make no finding in that regard.

     

  • [13]Although this allegation pre-dates 19 September 2013, it was still uppermost in the defender’s mind as a reason for refusing contact, though it ought not to have been as Sheriff Kelly had ordered contact to continue in terms of the order of 11 August 2011. Her duty was to obey that order, not to reopen issues canvassed and rejected previously in this litigation.

     

  • [14]In order for the pursuer to establish contempt of court by the defender, he has to prove beyond reasonable doubt:

     

    1. The defender was aware of the court orders;
    2. She refused to obtemper them;
    3. Her refusal was wilful; and
    4. She had no reasonable excuse for so doing.

       

      (See: Summary Applications and Suspensions, chapter 7.)

       

  • [15]Since the defender admitted under oath points (1) - (3) (36E, 39E, 46A, 51C, 64E, 65B, 66E, 67D), the main issue for determination in the proof was whether she had any reasonable excuse for not obtempering the court orders. I shall come to her duties in a moment.

     

  • [16]Her defence was she had tried to “persuade and encourage” J to go for contact and she had acted on the advice of others, including the social worker in refusing contact (67F, 68A). Further, she had tried unsuccessfully to “get J’s voice heard” (72D).
  • [17]I have rejected her evidence, for the reasons above, that J was scared or distressed by contact visits. I do not consider it likely the pursuer will try and kill J during contact visits. So that leaves three issues:

 

  1. Whether the defender complied with her duty to “persuade and encourage” J to go for contact with his father;
  2. Whether she was entitled to act on the advice of the social worker; and
  3. Whether she was entitled to persist in her efforts to “get J’s voice heard”?

 

  1. Duty to “Persuade and Encourage” J

     

  • [18]This case of contempt of court invokes one of the most common defences- the child will not go for contact. A resident parent’s duties are set out in Blance v Blance 1978 SLT 74, approved in Brannigan v Brannigan 1979 SLT (Notes) 73; and in Cosh v Cosh 1979 SLT (Notes) 72. The defender’s duty in accordance with that case law was to “tell the child, if necessarily firmly, to go”; to “create a climate of opinion in which they view their father in a reasonable and well-disposed light”; not to leave it to the child to make the decision “without positive guidance and genuine encouragement” from the resident parent.

     

  • [19]I find it instructive to consider what the defender said about her trying to “persuade and encourage” her seven year old child to go for contact with his father after Sheriff Kelly’s decision on 19 September 2013 that he should.

     

  • [20]In her discussion with J after that hearing, she referred to a “meeting” with the sheriff at which she and J’s dad “thought it would be a good idea to see daddy on a Saturday” (43D-44B). In her October (2013) discussion with J she asked him how do “we” get “daddy to promise he would stop talking badly about mummy and granddad”. She asked him: “how do you feel darling?” (46E). In her February (2014) discussion with J she talked with him about the “the idea of a supervised visit to get back his confidence”; in this context, she said to J: “If we get dad to promise not to talk about mum and grandpa” (83C).

     

  • [21]It is clear from these passages of the defender’s evidence she did not comply with her duties set out in Blance v Blance 1978 SLT 74, Brannigan v Brannigan 1979 SLT (Notes) 73 and Cosh v Cosh 1979 SLT (Notes) 72. Firstly, she had “discussions” with J after the court hearing on 19 September 2013, in October 2013 and February 2014. She did not tell him in these discussions that a sheriff was a Judge and J had to go for contact with his father. The contact order was more than a “good idea”; it was a judicial determination, obliging the defender to permit J’s father to have contact with him. It is not difficult to explain these things to a seven year old child of ordinary understanding.

     

  • [22]She ought not to have drawn her seven year old son into the decision making process, referring to how do “we” get daddy to do certain things, asking for his “feelings” on the subject”. She put proposals to him, such as a “supervised visit”. All of this was highly improper. If J was “distressed” by anything it is likely to have been by being put into a position too important and beyond his level of maturity to understand. He is not likely to have had the maturity to enter into these discussions and entertain these proposals.

     

  • [23]On the contrary, he was not told by his mother he had to go for contact with his father. Further, the defender did not “create a climate of opinion in which J viewed his father in a reasonable and well-disposed light”, as she did the opposite by suggesting to him his father should not speak about mum or grandpa. Finally, she ought not to have left it to J to make the decision “without positive guidance and genuine encouragement” from her that he should go for contact with his father.

     

    1. Advice of the social worker

       

  • [24]The social worker’s advice to the defender is in his letter to her at 6/4 of process dated 13 October 2013. In that letter he confirmed to the defender his advice that as she had parental responsibilities and rights to act in her son’s best interests, she had the right not to send him for contact if she “felt” contact was “emotionally distressing” for him and not to “send him and place him in a situation that is distressing for him”. As there “was a court order in place”, she had to be “able to justify why you have acted in such a way and return to your solicitor”.

     

  • [25]This advice was legally incorrect for two reasons:

     

  • [26]First, as it runs contrary to the resident parent’s duties set out by the Court of Session in Blance v Blance 1978 SLT 74, Brannigan v Brannigan 1979 SLT (Notes) 73 and Cosh v Cosh 1979 SLT (Notes) 72.

     

  • [27]Second, because parental responsibilities and rights are to be exercised subject to an order of the court under section 11 of the Children (Scotland) Act 1995 relating to parental responsibilities and rights and the social worker fails to mention this in his letter: see section 1(4) of the Act, referring to parental responsibilities being “without prejudice” to “duties imposed on parents at common law”(which must in my opinion include the duties in Blance v Blance 1978 SLT 74, Brannigan v Brannigan 1979 SLT (Notes) 73 and Cosh v Cosh 1979 SLT (Notes) 72). That being so, I consider the defender did not therefore have the right to stop contact on the basis of her “feelings” it resulted in J becoming “emotionally disturbed” because she was vested with parental responsibilities and rights for J. The decision was one for the court to make, not her, and, of course, the court refused to make such an order.

     

  • [28]Her duty was to comply with the court order; “reasonable excuse” might extend to refusing contact on a one off basis, such as where the child falls ill, the non-resident parent turns up drunk and is unable to care for the child; or the non-resident parent intends to use the contact visit to harm the child, subject the child to an illegal procedure (such as FGM) or international child abduction. The court cannot lay down all the circumstances that might constitute “reasonable excuse” and it does not attempt to do so here in abstracto. The question is whether in the circumstances of this case, the social worker’s advice constituted “reasonable excuse” for the defender refusing to obtemper the contact orders.

     

  • [29]It is in my opinion a matter of regret and concern that any social worker should have written such a letter. He should have advised her to return to the court to have contact reduced to nil based on these concerns, not to abrogate to herself based on her “feelings” to decide whether she would be “justified” in refusing contact despite the court order.
  • [30]His letter post-dates the hearing before Sheriff Kelly on 19 September 2013; but as it is unclear if the defender had informed him she had gone to court to reduce contact to nil but had been refused that motion only the month before, the social worker may not have had all the facts before him in giving this opinion. Further, he did at least suggest she take advice from her solicitor. So I think there is at least some mitigation for him writing as he did.

     

  • [31]The defender acknowledged in her evidence that she had been advised to take legal advice by the social worker (68D- 69D). I have to assume therefore that she would have been aware of her duties in terms of Blance v Blance 1978 SLT 74, Brannigan v Brannigan 1979 SLT (Notes) 73 and Cosh v Cosh 1979 SLT (Notes) 72 had she taken legal advice as suggested by the social worker; if not, I am of the view any ignorance of these duties, or failure to consult on them, does not constitute “reasonable excuse” for not obtempering a contact order.

     

  • [32]Such a letter might, in an appropriate case, constitute mitigation in respect of punishment for contempt of court, but not a defence to liability to such punishment. Moreover, this was not the only basis on which contact was refused by the defender.

     

  • [33]And insofar as she was relying on J’s “emotional distress” going for contact I have not found that to be factually sound in any event. The defence is not she was told by the social worker to stop contact but that she was told she could stop contact if she felt J were “emotionally distressed” by it; so even if the social worker’s letter constituted sound advice to the defender, it would not have availed her a defence of “reasonable excuse” because the factual basis for the defence is lacking.

     

    1. J’s voice

       

  • [34]There is a difference between an application to the court under section 11 of the Children (Scotland) Act 1995 for an order relating to parental responsibilities and rights; and an application to the court under its inherent common law jurisdiction to punish a contemnor for not obtempering such an order.

     

  • [35]A section 11 order must be made having regard to the child’s welfare as the paramount consideration and after giving the child an opportunity of expressing his views “taking into account of the child’s age and maturity” “so far as practicable”: section 11(7).

     

  • [36]But an application to the court under its inherent common law jurisdiction to punish a contemnor for not obtempering such an order is not an application for a section 11 order. The child’s interests are a primary, but not the paramount, consideration in those proceedings, particularly at the punishment stage (UN Convention on the Rights of the Child, Article 3.1) where the court might in suitable cases order a child impact statement from the local authority prior to punishment being imposed on the contemnor: Cf Gorrie v PF, Haddington [2014] HCJAC 10 at [21]; and see M v S 2011 SLT 918 at paragraph [45].

     

  • [37]I would be reluctant, despite their breadth, to read Articles 3.1 and 12.1 of the Convention, as obliging the court to obtain the child’s views when punishing a parent for contempt of court, or indeed sentencing a parent in criminal cases, on the proposed punishment or sentence, notwithstanding such punishment or sentence “concerns” (article 3.1) or “affects” the child (article 12.1).
  • [38]The UN Committee on the Rights of the Child’s General Comments on these articles do not mention such extension of these articles, though they do mention child victims, witnesses and accused. To adopt such a position would undermine the responsibility of the court to punish contemnors or sentence offenders and place the child in an anomalous position which is unlikely to be in accordance with the child’s welfare.

     

  • [39]Further proving contempt of court is not the same as assessing what is in a child’s best interests. It involves proving the four matters previously indicated in this Note. The child’s welfare might well be engaged at the “reasonable excuse” stage as the examples I have given show and in such case is a “primary consideration”. But as the child’s welfare is presumed by the contact order to include having contact with his father the contempt process is not to be turned over into a general section 11 enquiry on whether that order serves the child’s best interests as that has already been determined by the court.

     

  • [40]The two processes serve different purposes and where proof of facts is necessary there are different standards of proof. The court’s decision is guided in a section 11 application by the paramount consideration of the child’s welfare, facts being established on the balance of probabilities; in the other by whether there has been proved beyond reasonable doubt a breach of the non-resident’s duties to obtemper the contact order.

     

  • [41]This does not mean, in a suitable case, the court cannot enquire into the child’s desire not to go for contact, as that is a factual matter and may be relevant to the question of reasonable excuse.

     

  • [42]But it should proceed very carefully if it chooses to go down that route bearing in mind it is not for the child to determine the issue of whether his mother should be obtempering a court order. Taking such a course, which might more readily be taken in the section 11 application (as by Lord Jauncey in Cosh v Cosh), might only place the child in a difficult or distressful situation and allow the potential contemnor a further opportunity to continue in her disobedience to the contact order. In this case, applying these considerations, I did not think, having regard to J’s welfare as a “primary consideration” that I should cause his views to be taken. There were as I have indicated other explanations for possible distress, such as his mother drawing him into inappropriate discussions and not creating a positive environment in which contact could be encouraged. And I did not believe this chapter of the defender’s evidence in any event.

     

  • [43]That leaves the question whether J’s views should have been taken in the section 11 proceedings. Whether and how that is done is a matter for the presiding sheriff in any given case. A child 12 or over is presumed to be old enough to form a view. That doesn’t mean a child under 12 is presumed not to be. There is no such presumption. It is for the sheriff’s discretion in each case, having regard to the child’s “age and maturity”, whether and how the sheriff should take the child’s views. The sheriff must also consider if it is “practical” to do so.

     

  • [44]In this case, the defender stopped contact, apparently for a number of reasons, but one of these apparently being to allow J’s voice to be heard, being supported in this by J’s health visitor who in her letter dated 17 December 2013 at 6/5 of process refers to how she has tried to get J’s voice heard.
  • [45]Firstly, that is not her responsibility so far as section 11 proceedings are concerned; it is the court’s responsibility. Secondly, to the extent Sheriff Kelly did not take J’s views into account before reaching his section 11 decision on 19 September 2013 that was plainly a matter within his discretion. The defender does not have reasonable excuse for disobeying his contact order just because she objects to J’s voice not having been heard regarding the section 11 application.

     

    1. Conclusion

 

  • [46]I found it telling that the defender could think Sheriff Kelly didn’t “reaffirm” the earlier order of 11 August 2011 when she said in cross-examination:

     

    “ I got the way the Sheriff was saying the contact had to continue, but he left it open and acknowledged there were problems and if anything else happened, to come back to him”(67A).

     

  • [47]My general impression from her evidence was she viewed contact orders as discretionary and subject to further dialogue rather than obedential in nature, supported in this view by the social worker. While this attitude did not amount to a “reasonable excuse” for not obtempering the contact order, and I impressed upon her it did not, it did seem to me to be the basis for her defiance towards it and I considered that if she were willing to address and change that attitude then there would be a prospect for contact operating successfully in the future.

     

  • [48]In these circumstances, by way of punishment, I granted warrant for her imprisonment for 21 days from her committal to prison but suspended on condition she restore contact to the pursuer in terms of the court orders. I directed that before that warrant may be put into force, the pursuer’s solicitor enrol a motion to the court to that effect. Hopefully there have been no further problems because no such motion has been made to date.