Whose view prevails?

Enforcing contact orders

One of the most intractable problems in modern family law is the practical enforceability of child contact orders. The letter of the law itself is perfectly clear: a contact order under s 11(2)(d) of the Children (Scotland) Act 1995 will be made by a court only after it has concluded that it is in the welfare of the child to make the order. Any person who deliberately seeks to frustrate that order is acting against the court’s assessment of welfare and is in contempt of the court that granted the order. In theory, the law’s response to such contempt is no different in this context from any other. In practice, however, there is a serious reluctance ever to imprison or fine a parent acting in this way.

The typical example concerns the mother with residence not allowing contact between the child and the father holding a contact order under s 11. Even when the father goes back to court and the mother is threatened with contempt proceedings, she might still resist. In the literature such a mother is usually referred to as the “implacably hostile” parent. Sometimes she does genuinely believe that the court’s assessment of the child’s welfare is wrong.

There is a perception that the courts, unwilling to impose the sanction of imprisonment, feel themselves effectively powerless in the face of such a parent. A recent case shows, however, that sometimes the court’s patience snaps. In TAM v MJS [2009] CSIH 44 (Second Division, 15 May 2009) the mother had strenuously resisted for almost two years, in the face of numerous court hearings, the implementation of a contact order made by the sheriff. She failed to attend court hearings, made (false) allegations of sexual abuse of the child against the father, feigned illness when warrants for her arrest were issued, and made (spurious) complaints of professional misconduct against the curator who failed to agree with her that contact with the father should be terminated, and against a clerk of court who did not call an ambulance quickly enough in response to one of her episodes of apparent illness. Numerous solicitors whom she had employed had quickly sought leave to withdraw. The sheriff took the view that this pattern of behaviour amounted to a serious contempt of court and he jailed her for four months. The case went to the Inner House of the Court of Session, on a petition to the nobile officium, which is the only method of appealing against imprisonment for contempt of a civil court.

Clearly sympathising with the sheriff’s immense frustration, the Lord Justice Clerk concluded that he could see no reason whatsoever to recall the sentence. “If we did, we would encourage the petitioner in the view that it is for her to decide which orders of the court she will obey. We would also undermine the authority of the sheriff and deprive the respondent of his rights. In effect, therefore, we would perpetrate an injustice at our own hand” (para 46).

He also concluded that the mother had been in contempt of the Court of Session itself, for she had been released pending the hearing of the petition to the nobile officium on giving a written undertaking to that court that she would in the meantime allow contact, and once liberated had declared that she had no intention of doing so. But in order to give the mother time to reflect on the gravity of her offence, sentence for that contempt was deferred for six months, with a warning that any penalty might be severe.

So, sometimes, the court will impose the penalty of imprisonment for contempt, even when this means depriving the child of the primary carer. In extreme cases – and this was probably one – the residence parent’s behaviour is so perverse as to raise concerns about whether the child should remain in that person’s primary care. This happened in an English case, Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 where the mother had lied to the children, telling them that they had been abused by their father and his parents, and the court responded by transferring residence from the mother to the father, with supervision by the local authority.

Both these cases are extreme.

There is no doubt that the mothers in both the cases were acting neither reasonably nor rationally: rather their own interests and feelings were clearly dominating their minds, to the exclusion of their children’s welfare. But in less extreme cases, the problem is that the mother may well be acting rationally in response to a genuine belief that her assessment of the child’s welfare is more accurate than the court’s.

All good parents will doubtless do what they believe is best for their children, some even if the state (through the court) believes otherwise. But one can be rational, even reasonable, and yet wrong. If a court has made a decision as to welfare, then any contrary view is, legally speaking, wrong. Once a contact dispute gets to court, the parent’s assessment of the child’s welfare is never decisive. The real test of the court’s willingness to enforce its own contact orders will come in a far less extreme case than TAM v MJS, where the mother is genuine, rational and even reasonable in her belief that contact would harm the child, but the court simply disagrees.

Sexual offences

On 10 June 2009, the Scottish Parliament passed the long-awaited Sexual Offences (Scotland) Act 2009. One of the primary aims of this legislation is to clarify what the law understands by consent within the context of rape and other sexual offences. It also amends the law of sexual offences involving children. At long last the law is made both gender-neutral and sexuality-neutral, and so all the bizarre distinctions currently drawn by the Criminal Law (Consolidation) (Scotland) Act 1995 will simply disappear.

The Parliament rejected the suggestion of the Scottish Law Commission that sexual activity involving parties both of whom are under 16 should be decriminalised. Both will now be guilty (as opposed to only the boy, as at present). Offences will remain scheduled to the Criminal Procedure (Scotland) Act 1995, with the result that whenever a person under 16 is involved in sexual activity, a ground for referral to the children’s hearing will exist. But reporters will have the choice of whether to refer the child on the basis of being guilty of, or of being a victim of, a scheduled offence.

The long-term consequences to the child of being found guilty of a sexual offence are severe, and it is to be hoped that in the generality of cases reporters will choose to refer children on the basis of being victims. They will of course be able to prove such a case on the balance of probabilities rather than beyond reasonable doubt. A difficulty with that hope might be the case of Constanda v M 1997 SLT 1396, where the Court of Session held that the reporter ought not to avoid referring on the basis of a criminal offence, and thereby avoid the higher standard of proof, by using the same facts to found a different ground if the real essence of the case is the child’s criminal behaviour. Reporters are likely therefore to be faced with the unenviable task of examining the nature of the sexual activity the child has been involved with and making a decision of whether the child was in essence a criminal or a victim. This is unfortunate since it is unlikely that many cases will fall neatly on one side or the other of this false dichotomy.

Same-sex marriages

Just as 1999 was a year of profound change in the legal recognition of same-sex relationships across the western world, so too is 2009 shaping up to be another bumper year for reform. Same-sex marriage (as opposed to civil partnership) has been introduced this year in Norway, Sweden, Vermont, Maine, New Hampshire and Iowa, doubling the number of jurisdictions in which same-sex couples can marry. In addition, civil partnership has been introduced in Hungary and is likely to be introduced in Ireland also.

One departure from the trend was in California, where the Supreme Court, only a year after it opened marriage to same-sex couples, accepted the constitutionality of a ballot initiative (a referendum) to remove that right. It did hold that all the marriages that had been created between its original decision and the passing of the ballot initiative would remain valid.

Two public petitions have this year been presented to the Scottish Parliament for the opening of both marriage and civil partnership to couples of any gender mix, and while some MSPs have expressed support, legislation is, I suspect, unlikely to follow soon. Though it does not generate in this country the political vitriol seen in the USA, the issue remains live and will, sooner or later, have to be addressed by our parliamentarians.