Father fails in appeal against sheriff‘s decision to impose no penalty for mother’s contempt of court over refusal to allow contact with child 

Sheriff Principal Mhairi Stephen QC
Sheriff Principal Mhairi Stephen QC
A father who challenged a sheriff’s decision to impose no penalty against his former partner after she was found in contempt of court for failing to obey a contact order in respect of their son has had his appeal dismissed.
The Sheriff Appeal Court ruled that while the mother’s conduct constituted a “flagrant disregard” for the court’s authority, the decision to make no order was “open” to the sheriff, having regard to the facts and circumstances of the case.
Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Marysia Lewis and Appeal Sheriff Nigel Ross, heard that the appellant “TJ” challenged the decision of the sheriff at Perth to make no order and impose no penalty after making a finding that the respondent “SB” was in contempt of court due to her failure to obtemper a contact order in respect of their son “T”.
The ground of appeal was that the sheriff “erred in law” by concluding that the judgment of the Inner House in C.M. v S.M. [2017] CSIH 1 precluded her from imposing a custodial sentence upon the respondent.
‘Perverse decision’
Counsel for the appellant accepted that the appeal was not against “sentence” as contempt of court is not a crime and any penalty imposed is not regarded as a sentence.
Nevertheless, by determining not to make any further order as to punishment or penalty or, indeed at all, the sheriff erred by failing in her duty to determine the issue which was live before her as to the “appropriate consequences” of the respondent’s contempt. 
In making no order at all, the sheriff - who categorised the contempt as a “flagrant disregard for the authority of the court” - also failed to give either adequate or consistent reasons for her decision.
The sheriff allowed the respondent opportunities to purge her contempt by complying with the court’s interlocutor on contact which would mitigate punishment, but there was no contact in the relevant period. 
The sheriff therefore failed to place sufficient weight on the respondent’s “lack of contrition” and her failure to acknowledge or ameliorate her contempt. 
It followed, the appellant submitted, that the sheriff’s decision then to make no order at all was “inconsistent and indeed perverse”.
‘Competent disposal’
Refusing the appeal, the court considered that there was force in the appellant’s argument that the sheriff placed too much reliance on C.M. v S.M. but held that the sheriff did have sufficient regard to the facts and circumstances of the case when deciding to make no order.
Delivering the opinion of the court, Sheriff Principal Stephen said: “In this appeal it is contended that the sheriff failed in her duty to determine the matter of punishment which was live before her and failed to adequately consider the facts and circumstances of the case. As we have observed, the sheriff may have been unduly concerned about following the same or similar procedure which attracted criticism in C.M. v S.M. 
“However, in the following paragraph it is plain to us that the sheriff had regard not only to other sentencing options but in particular the respondent’s personal circumstances and mental health problems which she had been informed of on 20 January 2017. The sheriff took into account the child’s circumstances and the effect of the separation of the mother and ‘T’ which imprisonment would bring about. That has been described as a special consideration and relevant factor in determining sentence or penalty (M. v S. 2011 SLT 918). These factors, in our opinion, constitute sufficient reasons to explain the sheriff’s decision to make no order. 
“In these circumstances we reject the proposition that the sheriff failed to have regard to the circumstances of the case. She gave considerable weight to the personal circumstances of the contemnor and the child as she required to do. That she failed to give what the appellant describes as sufficient weight to the nature of the contempt is nothing to the point given that it is in the court’s sole jurisdiction to determine what, if any, penalty to impose following a finding of contempt. The disposal of the case is one which is competent and open to the sheriff to make.”

© Scottish Legal News Ltd 2019

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