Appeal By Sm Against Cm
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Malcolm,Lord Glennie |
| Judgment Date | 05 January 2017 |
| Neutral Citation | [2017] CSIH 1 |
| Court | Court of Session |
| Date | 05 January 2017 |
| Published date | 05 January 2017 |
| Docket Number | XA57/16 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 1
XA57/16
Lady Paton
Lord Malcolm
Lord Glennie
OPINION OF THE COURT
delivered by LORD GLENNIE
in the appeal
by
SM
Defender and Appellant
against
CM
Pursuer and Respondent
Defender and Appellant: McAlpine; Aitken Nairn WS
Pursuer and Respondent: Wallace; Blackadders
5 January 2017
Introduction
[1] This is an appeal by the defender and appellant against a finding of contempt made against her on 24 October 2013 by the sheriff sitting in Perth, and a sentence of 3 months imprisonment imposed on her in respect thereof on 20 May 2015, over a year and a half later. 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.
[2] Every case of contempt of court turns essentially on its own facts. However, this case raises issues of practice and procedure of more general application. It also gives rise once again to real concern about the time taken in the Sheriff Court to determine issues of contact and other matters concerning young children. We deal with these matters as they arise in the course of this judgment and in a postscript at the end.
[3] We should note that this appeal began as a petition to the nobile officium in which the defender and appellant was the petitioner. The sheriff provided a Note in that process giving a summary of what had happened in the contempt proceedings (which had already been covered in her judgment) and going on to explain the factors which had informed her decision on sentencing. Following the decision in Shepherd v Letley [2015] CSIH 87, that petition was dismissed of consent and, in effect, superseded by this appeal. As a result of this procedure, this Court has had the advantage not only of the detailed account of the proceedings set out in the sheriff’s judgment under appeal but also of her further observations contained in the Note.
Background
[4] The defender and appellant is the mother of a child, C, who was born in January 2009. The pursuer and respondent is the father. It is convenient to refer to them respectively as “the defender” and “the pursuer”, the roles they played in the proceedings in the Sheriff Court. They separated prior to the birth of the child. Since his birth, the child has been living with the defender.
[5] In January 2010, after some non-residential contact with the child, the pursuer commenced proceedings in the Sheriff Court seeking orders under the Children (Scotland) Act 1995 for parental rights and responsibilities and for more extensive contact with C than previously allowed. We shall call this “the contact action”.
[6] We are not here concerned with the merits of the contact action; but that action forms an essential part of the background to this appeal, both in establishing the interim contact orders of which the defender was alleged to be in contempt and in contributing to the procedural problems which have led to this appeal. It is necessary to summarise steps taken in the contact action in a little detail.
Procedure, Interim Contact Orders and Allegations of Contempt
[7] The contact action was sisted immediately after it was raised in order to allow attempts at mediation. Mediation having failed, the sist was recalled in June 2010. Thereafter a number of interlocutors were pronounced providing for interim contact between the pursuer and the child on particular dates and between particular times.
[8] An interlocutor of 16 July 2010 stipulated for contact between the pursuer and the child for two hours every Sunday morning at the home of the defender. On 20 October 2010 the pursuer complained by motion in the contact action that the defender was in contempt of court by reason of her failure, in breach of that interlocutor, to permit or facilitate contact on two occasions in August and a further two occasions in October. Arrangements for contact were later varied by an interlocutor of 3 December 2010 which provided for contact to take place for two hours every Saturday. On 23 February 2011 the pursuer made new complaints of contempt, again by motion in the contact action, to the effect that the defender had failed to permit or facilitate contact on 28 December 2010 and 5 February 2011. On 4 March 2011 the sheriff ordered that the allegations of contempt be dealt with by Minute and Answers, with a hearing fixed for 19 May 2011. We shall refer to the proceedings commenced by Minute as “the contempt proceedings”.
[9] The Minute was lodged on 18 March 2011. The hearing fixed for 19 May was discharged by agreement on that day, but orders were made allowing the defender further time to lodge Answers to the Minute, followed by a period for adjustment and the lodging of a closed record. A hearing on the Minute and Answers was of new fixed for 11 August 2011.
[10] On 15 July 2011, at the hearing of a motion by the pursuer in the contact action, the contempt hearing fixed for 11 August was discharged on the application of the defender because of the impending absence on holiday of her agent. The sheriff dealing with the matter decided that there should be an evidential Child Welfare Hearing in relation to the contact action and, simultaneously, a hearing in the contempt proceedings, both to take place on 29 July and 1 and 2 September 2011. No objection was taken to that course.
[11] In August 2011 the defender’s agent withdrew from acting. Her new agent attended the hearing on 1 September 2011 and, on grounds of her own late instruction and the defender’s illness, persuaded the sheriff to discharge both hearings. They were re-fixed for 1 December 2011.
[12] Meanwhile, in the contact action, an interlocutor was pronounced on 27 May 2011 fixing contact between the pursuer and the child for four hours every Saturday between 10.30 am and 2.30 pm. In due course the pursuer complained that in breach of this interlocutor the defender had failed or refused to facilitate contact on 8 October 2011. This complaint was first raised in the contact action but was at some point amended in to the Minute for contempt (at crave G and Statement 8) and the Answers previously lodged by the defender were amended to answer it.
[13] On 1 December 2011 the sheriff ex proprio motu discharged both the evidential hearing in the contact action and the hearing in the contempt proceedings. He sisted the contempt proceedings. In the contact action, having discharged the evidential hearing, he issued an interlocutor fixing contact between the pursuer and the child for seven hours every Saturday between 10 am and 5 pm. The contact action called at an Options Hearing on 10 February 2012. A diet of proof in the contact action was fixed for 20 April 2012 but that diet was discharged by agreement because at that time contact appeared to be operating relatively well. The contact action was sisted for mediation in July 2012. That sist was recalled in August or September 2012 in light of complaints by the pursuer that, in breach of the interlocutor, the defender had failed or refused to facilitate contact on 11 August 2012. That complaint, and further complaints that the defender had failed to facilitate contact on 7 April, 1, 8, 15, 22 and 29 September and 6 October 2012, were at some point amended in to the Minute for contempt (craves H, I and J and Statement 9) but were never formally answered by the defender.
[14] On 12 October 2012 the sist was recalled in the contempt proceedings and a hearing fixed for 10 January 2013. At the same time a diet of proof in the contact action was fixed for that same date.
Proof in the Contact Action and the Contempt Proceedings
[15] The proof in the contact action and the hearing in the contempt proceedings – we shall refer to this combined hearing as the proof, the hearing or the case without intending any distinction between those terms – commenced on the afternoon of 10 January 2013. This was, as we understand it, the first time the case had appeared before that particular sheriff. She was at the time a visiting sheriff at that Court. We mention these matters in fairness to her, since the procedure of having the contact action and the contempt proceedings heard together (albeit not formally conjoined), had already been decided upon without objection by either party by the time she first saw the case. Further, being a visiting sheriff, she was only available for limited periods; and once the case had commenced before her such further hearings as were required to complete the evidence and submissions had to fit around her availability.
[16] The pursuer commenced examination in chief that afternoon. It became apparent that further time was required. Parties were agreed that four further days would be sufficient. After a procedural hearing in March, it was ordered that the proof would continue on 2, 3, 4 and 5 July 2013, those being the earliest dates on which the sheriff was available. However, even before the proof resumed on 2 July 2013, parties came the view that yet further days would be needed.
[17] Before adjourning the case, the sheriff pronounced an interlocutor making further provisions for contact between the pursuer and the child. The pursuer subsequently complained that in breach of that order the defender had failed or refused to facilitate contact on Saturday 6 April and Sunday 7 April 2013. This complaint was amended in to the Minute for contempt (at Crave K and Statement 10) but, as with the previous amendment, was never formally answered by the defender.
[18] Accordingly, when the case next came before the sheriff in July 2013 the Minute and Answers in the contempt proceedings were in the form of an Open Record, containing allegations of contempt in respect of matters which had arisen after the hearing in those...
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