Mother jailed for contempt of court over failure to allow contact wins appeal

The Inner House of the Court of Session ruled that the sheriff’s decision to hear the contact action and the contempt proceedings together created an opportunity for “substantial injustice” to be done and that the sentence imposed – more than a year and a half after the finding of contempt – was “excessive”.

Lady Paton, Lord Malcolm and Lord Glennie heard that the defender and appellant “SM” had separated from the pursuer and respondent “CM” prior to the birth in January 2009 of their child “C”, who had since been living with his mother.

In January 2010, after some non-residential contact with the child, the pursuer commenced proceedings in the sheriff court seeking orders for parental rights and responsibilities and for more extensive contact with C.

An order for contact was made but the pursuer lodged a motion complaining that the defender was in contempt of court by reason of her failure, in breach of an interlocutor, to permit or facilitate contact.

Following several hearings and a number of discharged diets, during which period the number of complaints of contempt had risen to 17, the sheriff dealing with the matter decided that there should be a proof in the contact action and the contempt proceedings should be heard simultaneously, and no objection was taken to that course.

The proof took place in January 2013 before a different sheriff, who issued two judgments on 24 October 2013, one in respect of the contact action and the other in respect of the contempt proceedings

In the latter, the sheriff rejected the pursuer’s case in respect of 12 of the occasions on which contact which ought to have taken place had been missed as she did not find it proved beyond reasonable doubt that her failure to allow access on those occasions amounted to a contempt of court.

However, she found that the defender’s failure to facilitate contact on five occasions was “wilful, inexcusably careless or a flagrant disregard for the authority of the court”.

Having found the defender in contempt of court, the sheriff adjourned the case for reports but delays and deferrals “to allow the further opportunity to obtemper the court’s order” meant she was not sentenced until 20 May 2015.

The sheriff said she considered that a custodial sentence was “appropriate” and that the maximum period of three months was “merited” to reflect the serious nature of the contempt, having regard to the numerous “blatant failures” to obtemper the court’s earlier orders and the conduct of the “since sentence was deferred” in June 2014.

On behalf of the defender, while counsel stopped short of submitting that it was incompetent to run the contact action concurrently with the contempt proceedings before the same sheriff, it was argued that that course had “afforded an opportunity for substantial injustice to be done” and that substantial injustice had in fact been done in the present case.

While contempt proceedings were sui generis, being neither civil nor criminal, in many respects – such as burden and standard of proof, compellability of witnesses and the potential for deprivation of liberty – they had much in common with criminal proceedings.

It was also submitted that the defender had suffered a miscarriage of justice in relation to the finding of contempt as a result of “defective representation” before the sheriff, as the defender could show that her defence as shown to her agent was not properly put before the court, meaning that, albeit through no fault of her own, the sheriff had “failed to consider relevant evidence” and the appeal court was therefore “entitled to interfere with the sheriff’s findings of contempt”.

It was further argued that, in any event, the sentence imposed by the sheriff was “excessive” and, separately, took into account matters, such as her subsequent attitude to contact arrangements, which were “irrelevant” to the question of what punishment was appropriate for the specific instances of contempt found by the sheriff after proof to have been established.

Delivering the opinion of the court, Lord Glennie said: “Having heard argument on both sides, we have concluded that we should quash that finding of contempt. It follows that the sentence of imprisonment falls away; but even if we had not quashed the finding of contempt we would, in any event, have quashed the sentence of imprisonment.

“There is in our view an undoubted difficulty in allowing the two very different types of proceeding to be heard together. We have identified the main problems earlier in this Opinion: the issues are different, there are different standards of proof, there are different rules as to compellability (or, perhaps more accurately, as to the power to draw inferences adverse to a party if he or she does not give evidence), and there are different outcomes, both extremely serious.

“There might well, we suspect, be a concern that it will be almost impossible for the sheriff to make some findings according to one standard of proof and some according to the other, and very difficult for the sheriff not to allow her impressions of the witnesses and evidence on some matters to infect her thinking on others.

“The fact is that that procedure afforded an opportunity for substantial injustice to be done; and, in our view, without pre-judging what decision the sheriff would have made had she heard evidence from the defender about the missed contacts for which she found the defender to be in contempt, there is a real risk that substantial injustice was done.”

The judges also decided not remit the case back to the sheriff after concluding that, even if the finding of contempt were to stand, the sentence of imprisonment imposed should be set aside.

The court noted that the finding of contempt was made in October 2013, but as a result of repeated adjournments or deferments, the defender was not in fact sentenced until May 2015.

“Such delay is inimical to the interests of justice,” Lord Glennie said. “If a sentence of imprisonment is to be imposed, it should be imposed without undue delay, since the period running up to the imposition of that sentence will inevitably be fraught and stressful. For the defender to have to endure such delay only to find that she was then sentenced to the maximum sentence of imprisonment of three months is, to our minds, wholly inappropriate.”

It was also a “matter of concern” for the judges that the sheriff appeared to have taken into account in fixing her sentence events other than the five instances of contempt of court which she had found established.

Lord Glennie said: “In fixing upon her sentence, as she informs us in her Note, the sheriff took into account the defender’s continuing unwillingness after the judgment to cooperate with social workers in terms of a child protection plan, her denial of access to the child for social workers, her failure to notify the pursuer of a new address, her failure to obtemper not just orders as to contact but also other aspects of court orders and, more generally, the fact that ever since sentence was first deferred in June 2014 she had demonstrated by her conduct a continuing disregard for the court’s authority.

“None of this is relevant to the question of sentencing. The sentence passed by the court should be a sentence in respect of the instances of contempt found to have been established and should not take into account subsequent conduct which did not form part of the allegations in the Minute for contempt and had not been proved to the requisite high standard.”

The judges added that the case raised issues of practice and procedure of more general application, giving rise once again to real concern about the time taken in the sheriff court to determine issues of contact and other matters concerning children.

Lord Glennie said: “The time taken to resolve disputes about contact should be measured not in years but in weeks or, at most, months.

“We understand that the case management tools presently available in family actions are under review by the Scottish Civil Justice Council. We welcome such a review.”