C A F V M L H (ap)
| Jurisdiction | Scotland |
| Judge | Sheriff George Jamieson |
| Court | Sheriff Court |
| Date | 15 July 2014 |
| Published date | 05 August 2014 |
2014SCDUM30
SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES
NOTE (No.11)
(Defender’s Motion 28 of process in relation to contempt of court in connection with interlocutor of 18 July 2013)
by
SHERIFF GEORGE JAMIESON
in family action F27/12
C. A. F. PURSUER
against
M. L. H. (AP) DEFENDER
_____________________________________________
DUMFRIES: 15 July 2014
Act: Party in person Alt: Maxwell
The sheriff sets out in the accompanying Note his reasons for finding the pursuer in contempt of court in terms of his interlocutor of 27 June 2014 and for pronouncing that part of the interlocutor of 2 July 2014 punishing her for that contempt of court; and, having made avizandum at the hearing on 2 July 2014 in relation to the expenses associated with motion number 28 of process from 13 June 2014 (the date the sheriff principal remitted this motion to the sheriff for its consideration in the first instance), to 2 July 2014, further reserves consideration of those expenses, and the expenses of process thereafter, to the Diet Roll of 11 September 2014 at 10:00am of the Ordinary Court that day to assign a diet of hearing on expenses on a date thereafter.
Sheriff George Jamieson
NOTE:
- [1]I begin this Note by setting out my understanding of some of the legal principles and practices relating to contempt of court in the context of orders made by the court under section 11 of the Children (Scotland) Act 1995 as this understanding underpins the decisions I have made on the facts of this case. Ms F, a party litigant, whom I have found to be in contempt of court, seems to think, as will be seen, it is for her to decide which orders of the court she will obey; this Note is intended to covey to her the gravity of her conduct and why it merits punishment; and to attempt to set out something of the context in which Ms F has come to be found in contempt of court. In dealing with the question of her contempt of court, I made an important distinction between applications under section 11 of the Children (Scotland) Act 1995 for an order relating to parental responsibilities and rights, where the paramount consideration is what is in the best interests of the children; and proceedings for contempt of court for not obeying such an order, where the court, having made a section 11 order, satisfied it is in the children’s best interests to do so, is faced with a wilful refusal to obtemper that order by one of the parties to the order. As in this case, the issue most often comes to light in the context of a parent with residence (Ms F) refusing to obtemper a contact order made in favour of the parent without residence (Mr H- the parties were married but have retained their own surnames). The order in question is dated 18 July 2013. It was pronounced by agreement of the parties, but as I had previous involvement in the case, I was willing to make it because I thought it reflected the best arrangements for the children at that time and it was better for the children to make the order than not to make it. On 19 April 2014, Ms F decided she would no longer obtemper this order. The case had been on appeal to the sheriff principal in relation to many other matters but not this. On 13 June 2014 he remitted the matter of contempt of court to the sheriff “in the first instance” to “proceed as accords”. The sheriff clerk then assigned a hearing for 27 June 2014 in respect of the motion, which decision I endorsed by signing an interlocutor assigning that hearing. My interlocutor of 27 June 2014 sets out in detail the procedure I adopted in respect of this motion at the hearing on that date. There were other matters relevant to the operation of residence and contact I also decided on the same day, but, importantly, no application by Ms F to recall the contact order. But I had two separate proofs that day: one in relation to the section 11 applications, where I based my decisions on section 11 and the paramount consideration of what I thought to be in accordance with the children’s welfare; and, secondly, in this proof, where I took a different approach. First, in making findings in fact, I was not primarily deciding what was in the children’s best interests; I was deciding, according to the law, if Ms F was in contempt of court. Secondly, since the children’s interests are not the paramount consideration in punishing Ms F for her contempt of court, but are a “primary consideration” (UN Convention on the Rights of the Child 1989, article 3; M v S 2011 SLT 918; cf.Gorrie v PF, Haddington [2014] HCJAC 10), I have had regard to those interests as a primary but not the paramount consideration in punishing her for her contempt of court. In the circumstances of this case, the paramount consideration is that the rule of law be upheld. Such a task is never a pleasant one.
- [2]The essential elements of contempt of court are; first, that the alleged contemnor knew of the order she is alleged to be breaking; second, she has not in fact complied with the order; third, her non-compliance was wilful; and fourth, it was without reasonable excuse (I have largely followed my understanding of the procedure as set out in Summary Applications and Suspensions, chapters 7 and 8). Where contempt of court is not admitted, proof is necessary and the onus lies on the party alleging the contempt (Mr H) to prove it and to do so beyond reasonable doubt. Although the case law usually refers to a party being “sentenced” for contempt of court, and that is useful shorthand for the process involved, this seems to me not strictly speaking to be the case. Section 307(1) of the Criminal Procedure (Scotland) Act 1995 makes it clear that “sentence” does not include an order for committal to prison for contempt of court. By virtue of section 15(2) of the Contempt of Court Act 1981, the sheriff court’s maximum powers of punishment are three months’ imprisonment, a fine of £2,500 or both. My reading of section 15(3) of the Contempt of Court Act 1981 is the court summarily proceeds with punishment of a contemnor in civil proceedings; a criminal justice social work report only being necessary before imposing punishment by way of committal to prison if the contemnor be under 21 years of age: see Forrest v Wilson 1994 SLT 490 confirming this understanding in the context of a contempt of court in criminal proceedings. A committal to prison for contempt of court, not being a sentence, would also mean, for example, the presumption against short sentences in section 204(3A) of the Criminal Procedure (Scotland) Act 1995 would not apply. In my opinion and practice in these matters I do not consider the court is empowered to impose an alternative criminal sentence such as a Community Payback Order or Restriction of Liberty Order for while in a civil process the court may punish for contempt of court it does not “sentence” therefor. The court also has common law options such as censure, admonishment, and deferral of punishment, with or without caution, with a view to allowing the contemnor to purge her contempt of court. I am also of the opinion any warrant for committal to prison may be suspended by the court on conditions such as the contemnor obtemper the order of court in the future. Although section 15(2) of the Contempt of Court Act 1981 refers to a person being found “guilty” of contempt of court, it seems to me to be preferable to avoid using the word “guilty” in connection with a finding of contempt of court by the court to avoid connotations with criminal sentencing. In my opinion, it suffices to make a “finding” that a person is found in contempt of court[1]
- [3]In this case, Ms F admitted under oath knowing about the contact order. Both in her Answers lodged at the proof on 27 June 2014 and in her evidence, she admitted non-compliance with the contact order, though she attempted to give reasons justifying that decision. In her evidence she admitted that since the first contact visit after 19 April 2014 fell due she had been wilfully refusing to comply with the contact order. This was after she had “decided” on 19 April 2014 she would no longer allow Mr H to have contact with the children in terms of the court order. I was therefore satisfied beyond reasonable doubt that these aspects of the contempt of court had been proved by Mr H
- [4]The remaining question was whether this wilful disobedience to the contact order was without reasonable excuse. Although in doing so, the onus of proof was not reversed, I granted Mr H’s motion that Ms F lead in the proof. She raised a number of general points in the course of her evidence as apparent justification for her not obeying the contact order of 18 July 2013. For example, she sought to present herself as a victim of domestic violence and abuse and harassment by Mr H and his family. These are claims that she repeatedly dwells upon at most hearings in these proceedings. In the court ordered child welfare report she stated the opposite to the reporter: “there had been no domestic violence” (page 21). As recorded in my finding in fact number 4 in my first Judgment, the parties struggled physically with each other on 28 November 2011. During that struggle the pursuer hit the defender on the head with her handbag causing him to fall to the ground and injure his face. They separated on that date and are now living apart.I later found their marriage had broken down irretrievably, not by reason of the defender’s behaviour, but upon Ms F amending her divorce crave to irretrievable breakdown of their marriage because of their separation for one year and the defender’s consent to divorce, Ms F having failed to prove the irretrievable breakdown of their marriage by reason of Mr H’s behaviour. I have granted decree of divorce on that basis. I did not find in the divorce proof on the basis of Mr H’s behaviour that Ms F’s claims of incidents of other domestic violence by Mr H...
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