Ag V. Jb
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lady Dorrian,Lord Emslie |
| Neutral Citation | [2011] CSIH 56 |
| Court | Court of Session |
| Published date | 24 August 2011 |
| Year | 2011 |
| Date | 13 July 2011 |
| Docket Number | P1573/09 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Emslie Lady Dorrian | [2011] CSIH 56 P1573/09 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in the Petition to the nobile officium by AG Petitioner; against JB Respondent: _______ |
For the respondent: No appearance
13 July 2011
Introduction
[1] On 4 November 2009 at Kirkcaldy sheriff court Sheriff McCulloch found the petitioner to be in contempt of court and sentenced her to two months imprisonment. The petitioner has applied to the nobile officium for suspension of the finding and of the sentence.
The sheriff court action
[2] The petitioner is the mother of ARG (the child), born on 20 January 2005. The respondent is ARG's father. In February 2006 the respondent raised an action craving an award of parental rights and responsibilities and a contact order in relation to the child under section 11 of the Children (Scotland) Act 1995. The petitioner defended the action on both points. In her defences she alleged that the respondent had molested her on various occasions. On 29 August 2006 she obtained interim interdict against the respondent from molesting her.
[3] On five days between 9 November 2006 and 8 February 2007 Sheriff Braid heard proof in the action. On 5 December 2006, at a late stage in the evidence, the petitioner's solicitor alleged that the respondent had molested the petitioner during the lunch adjournment. The sheriff considered that this allegation could be relevant to the respondent's claim for contact and to the interdict that the petitioner was seeking. At that stage the petitioner had led no evidence about any of the alleged incidents referred to in her pleadings. In her own evidence she had not referred at all to her crave for interdict. The sheriff gave leave to the petitioner to lodge a minute of amendment relating to the alleged incident. He then adjourned the proof to 11 December 2006, a date convenient to the petitioner.
[4] On 11 December 2006 the petitioner failed to appear. Her solicitor told the court that the petitioner was too afraid of the respondent to attend. In an attempt to progress matters the respondent offered not to attend court while the petitioner gave further evidence. Having telephoned the petitioner for instructions, her solicitor agreed to that proposal. On the petitioner's motion the sheriff adjourned the proof to 29 January 2007.
[5] On 29 January 2007 the petitioner failed to appear. Her solicitor again said that she was afraid to do so. He was unable to obtain further instructions and withdrew from acting. The court thereafter received a letter from the petitioner intimating that she intended not to participate further in the process.
[6] In the result, notwithstanding the petitioner's minute of amendment, no evidence was led about the alleged incident on 5 December 2006.
[7] On 8 February 2007 the sheriff, in the absence of the petitioner, heard submissions for the respondent.
[8] On 10 April 2007 the sheriff issued his judgment. He found that it was conducive to the child's welfare that the respondent should have parental rights and responsibilities and that the child should have continuing contact with him. Since there was no prospect that the petitioner would accept that the respondent should have parental rights and responsibilities or would voluntarily allow him to have contact, the sheriff concluded that it was better for the child that an order be made.
[9] Sheriff Braid criticised both the petitioner's evidence and her conduct at the proof. He considered that it was perhaps an abuse of process that on 5 December 2006 she should have caused her solicitor to introduce a prejudicial allegation at a late stage in the case when she was apparently unwilling to attend court to give evidence in support of it. He observed that when the petitioner had returned to court after the lunchtime adjournment on that occasion she had not seemed to be unduly upset or afraid of the respondent. The sheriff could see no reason why the petitioner could not have instructed her solicitor to make submissions based on the evidence that had already been heard. He concluded that the petitioner was trying to manipulate the court into finding in her favour, or had no intention of complying with whatever order the court might make. He considered that she had shown scant regard for the court's authority by telling him that even if an order for contact were to be granted, she would not comply with it. He concluded that the petitioner's opposition to contact was now so vehement that she would be willing to lie in furtherance of it.
[10] The sheriff assigned 9 May 2007 as a child welfare hearing at which arrangements for contact were to be made. That hearing did not take place because the petitioner appealed to the sheriff principal.
[11] On 25 September 2007 the sheriff principal refused the appeal and adhered to the sheriff's interlocutor.
[12] A further child welfare hearing was fixed for 25 October 2007. On that date the petitioner failed to appear, having intimated to the sheriff clerk's office that she had no intention of attending the hearing. The sheriff ordained her former solicitors to disclose her address. He ordained her to appear at a further hearing on 16 November 2007.
[13] On 16 November 2007 the petitioner yet again failed to appear. The sheriff was satisfied that the petitioner had had an opportunity to be heard. He found the respondent entitled to non-residential contact, supervised by one of his parents, every second Saturday from 12pm until 3pm with effect from 24 November 2007.
[14] The petitioner did not obtemper the interlocutor of 16 November 2007. On 28 November 2008 the respondent lodged a minute to have her ordained to appear to explain her continued failure to allow contact.
[15] On 19 December 2008 there was a hearing on a motion in terms of the minute. The petitioner failed to appear. The hearing on the motion was continued to 28 January 2009.
[16] On 28 January 2009 the petitioner failed to appear. The hearing was further continued to 5 February 2009 and a warrant was granted for the arrest of the petitioner.
[17] On 5 February 2009 the petitioner failed to appear. The sheriff again granted a warrant for her arrest.
[18] The petitioner finally appeared on 6 July 2009. A proof on the respondent's minute was fixed for 28 September 2009. On 12 September 2009 the petitioner sent a letter to the court saying that she would not attend the proof. The sheriff clerk told her that she had to attend.
[19] On 28 September 2009 the petitioner failed to appear. Sheriff McCulloch heard evidence from the respondent that he had made regular efforts to see the child. On occasion the petitioner would agree, but would then contact him to say that he could not see her. She had told him that he would never get to see the child. The sheriff found him to be a credible and reliable witness. The respondent's solicitor gave evidence that the petitioner had told him on numerous occasions that she had no intention of obtempering the court's order for contact and would ensure that the respondent had no contact with the child.
[20] The sheriff found that the petitioner was in contempt of court by failing to obtemper the interlocutor of 16 November 2007. He ordained her to appear on 21 October 2009 to explain herself. That date was intimated to the petitioner by sheriff officers both at the address that she had given in her letter of 12 September 2009 and at the address given as her residence in the instance of the present petition.
[21] On 21 October 2009 the petitioner failed to appear. The sheriff issued a further arrest warrant.
[22] The petitioner was duly apprehended by sheriff officers. On 4 November 2009 she appeared in court. She declined the services of a solicitor. At first her only reply to the sheriff's questions was "no comment." She then made several baseless allegations against the respondent, court officials and the police. She said that she was not prepared to allow any contact, notwithstanding any court order. She said that she had a new partner and was encouraging the child to call him "dad." The child would now be confused if the respondent were to have contact since it had been some time since he had seen her. The petitioner was unapologetic and unrepentant. She said that if the sheriff were to call for a social enquiry report she would not co-operate. The sheriff noted that the petitioner had made no attempt to have...
To continue reading
Request your trial
-
Pet Shabana Yasmin Soofi Or Murtaza (fe) For Suspension Ad Interim
...where she cannot appeal the order but where she can be jailed for contempt if she fails to obey the order [M v S 2011 SLT 918; AG v JB [2011] CSIH 56 (13 July 2011)]. It is not within the power of this particular Petitioner to comply on her own with what the Sheriff has ordered her to do. S......
-
Appeal By Messrs J & E Shepherd Against Paul David Letley
...sheriff principal considered, correctly, that he was bound by Forbes. He also observed, under reference to M v S 2011 SLT 918 and G v B 2011 SLT 1253, that a sheriff’s decision in relation to both a finding of contempt and a subsequent sentence were reviewable only by petition to the nobile......
-
C A F V M L H (ap)
...to prison (Forbes v Forbes 1993 SCLR 348 ; doubted but not overruled in McIver v McIver 1996 SLT 733; M v S 2011 SLT 918 and G v B 2011 SLT 1253)[2] or for suspension and interdict/ liberation[3]. As she was a party litigant, I explained this basic point to Ms F on 27 June 2014. This was in......
-
J.b. V. A.g.
...The proceedings in that appeal are rehearsed by the then Lord Justice Clerk in the Opinion of the Second Division cited as G v B, 2011 S.L.T. 1253. In summary Ms G's appeal was unsuccessful and she was also found to be in contempt of the Court of Session. She served the period of imprisonme......