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 petitioner: Party

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 the award of contact varied. He asked her whether she wished to do so, but she was unable or unwilling to reply. The sheriff, having found her to be in contempt, imposed the sentence with which this petition is concerned.

The petition

[23] In November 2009 the petitioner lodged the present petition. She sought recall and reduction of the interlocutor of 28 September 2009 and of the sentence imposed on 4 November 2009, and liberation ad interim. The basic proposition in the petition was that the sheriff had erred in making a finding of contempt in her absence when she had had no opportunity to explain her reasons for failing to obtemper the relevant interlocutor. On the matter of sentence the petitioner averred that the sentence imposed was harsh and oppressive since the sheriff had failed to call for a social enquiry report; that she ought to have been treated as a first offender; and that she was the primary carer of two children.

[24] Certain material averments in the petition were later found to be untrue. The petitioner averred that before the hearing on 28 September 2009 she had telephoned the court to advise it that she would be unable to attend because she was unwell. When enquiries were made, it was found that the sheriff clerk's office had had no such contact from her. She averred that she had been unaware of the diet on 21 October 2009; but sheriff officers had personally served notice of it on her at her home address. The petitioner also founded on a medical certificate dated 10 September 2009, which was not on soul and conscience and which had expired on 21 September 2009.

[25] The petition concluded with the following critical averments:

"She is willing to undertake to obtemper the interlocutor of 16th November 2007. A copy of her undertaking is produced herewith and referred to for its terms."

The undertaking

[26] The petitioner's solicitors lodged with the petition a handwritten undertaking dated 13 November 2009 (6/25 of process), signed by the petitioner and witnessed by a solicitor and notary public. It is in the following terms:

"I, [AG] born Edinburgh 2 January 1967 and currently incarcerated at HMP Cornton Vale hereby undertake to obtemper the court's order of 16 November 2007.

I do this on the understanding that the pursuer's parents will collect and return [ARG] from my home at times stated and that the pursuer will not also be present at collection and return as I wish no direct contact with him."

After this undertaking was lodged, the petitioner moved for interim liberation. On 19 November 2009 this court granted the motion and appointed the sheriff to submit a report quam primum.

The petitioner's conduct since she was granted interim liberation

Sheriff court

[27] On 9 December 2009 a child welfare hearing took place before Sheriff McCulloch. The petitioner was present and was legally represented. Her solicitor informed the court that the petitioner would not adhere to the undertaking to allow contact and would not allow the respondent to see the child under any circumstances. He moved the court to vary contact to nil. The sheriff refused the motion. He called for a report from a suitably qualified psychologist to advise how best the child could be reintroduced to the respondent and could overcome the petitioner's resistance to contact. He continued the child welfare hearing until 24 February 2010.

[28] On 24 February 2010 the petitioner failed to attend the child welfare hearing. She produced a soul and conscience letter from her doctor to the effect that she was unfit to attend court that day. The letter gave no reason. Her solicitors then withdrew from acting for her.

[29] On 17 March 2010 the sheriff fixed a child welfare hearing for 31 March 2010. The petitioner did not attend the hearing. Her explanation was that the weather was inclement. The sheriff fixed a further hearing for 21 April 2010.

[30] The petitioner thereafter intimated to the court that she would not attend the hearing fixed for 21 April 2010. She lodged a minute seeking variation of the award of contact to nil. The sheriff appointed a hearing on the minute to be held on 19 May 2010.

[31] At the hearing on 19 May 2010, as is recorded in the interlocutor, the petitioner said that she was no longer adhering to the undertaking that she had given to this court and that she wished to insist upon her minute. The sheriff fixed a proof on the petitioner's minute for 20 September 2010. That diet was in the event discharged.

[32] On 25 February and 2 and 3 March 2011 Sheriff Williamson heard a proof on the minute for variation of contact. The sheriff reports that the petitioner did not appear on the first day of the proof. She said that the child was ill. The sheriff accepted this explanation. When the petitioner did appear the sheriff explained that he would not allow her to rehearse issues that had already been determined by Sheriff Braid. The petitioner either did not understand this instruction or chose to ignore it. Much of her evidence was irrelevant or repetitious. The sheriff listed several examples of her paranoid behaviour. This included a repetition of a claim that she had been bullied by her legal representatives into signing the undertaking, and baseless allegations against her former solicitors and counsel, the respondent's counsel and court officials. She eventually said that she would not engage in the court process any further. By interlocutor of 3 March 2011 the sheriff dismissed the minute for want of insistence.

[33] The petitioner thereupon appealed to the sheriff principal against that interlocutor. While that appeal was pending, she attempted to lodge a fresh minute for variation dated 17 June 2011 in which she moved the court "to revoke and reduce to nil [the respondent's] parental rights and responsibilities, and contact order made November 2007."

Court of Session

[34] Meanwhile, on 29 January 2010 this court held a By Order hearing to determine further procedure in the petition. The petitioner did not appear. The court fixed a further By Order hearing for 10 March 2010. In due course this hearing was further continued to 12 May, 26 May, 24 November and 15 December 2010 and 4 May 2011 to await the outcome of proceedings in the sheriff court.

[35] On 21 May 2010 the petitioner wrote to this court to say that she had signed the undertaking under severe duress and on the "ill advice" of a solicitor whom she had never met before. She described the undertaking as void.

[36] At a hearing on 4 May 2011 we found that all material averments in the petition were contradicted by Sheriff McCulloch in his reports. We had no reason to doubt the sheriff's account of matters. We refused the prayer of the petition so far as it sought recall of the interlocutor of 28 September 2009.

[37] Realising that we might also refuse the petition in relation to sentence, the petitioner at the last minute offered to give us a further undertaking in the following terms:

"I [AG][address] Believing that I am going to be incarcanited (sic) and agree to drop proceedings and allow [the respondent] contact with [ARG] (Sgd) [AG]"

[38] The petitioner made clear to us that by "dropping proceedings" she meant withdrawing her defences to the sheriff court action and abandoning her appeal to the sheriff principal.

[39] We did not accept the petitioner's undertaking, for three reasons. Firstly, it was too vague to be of any practical value. Secondly, we were not prepared to negotiate with the petitioner about whether she would obtemper a court order. Thirdly, we had no faith whatever in any undertaking from her, since she had obtained interim liberation on an undertaking that she had thereafter disclaimed. We continued consideration on the matter of sentence until 1 June 2011 for the preparation of a social enquiry report. We made it clear to her that in reaching our decision on that occasion we would take into account whether she had made satisfactory and effective arrangements for the respondent to have contact with the child. We continued interim liberation.

[40] On 1 June 2011 we considered the question of sentence. Our opinion was that the sentence had been entirely appropriate when it was passed. However, the petitioner told us that with the assistance of Relationships Scotland she would give the respondent supervised contact with the child on 18 June 2011.

[41] In the child's interests we were anxious not to jeopardise these arrangements. We therefore continued our consideration of sentence until 29 June 2011 to await a report from Relationships Scotland and to ascertain whether the petitioner had withdrawn her defences to the sheriff court action and abandoned her appeal to the sheriff principal, as she had said she would.

[42] The petitioner then enrolled what purported to be a motion for review of the interlocutor of 1 June 2011. She stated that this had been prompted by her receipt of what she considered to be an abusive letter from the respondent. She submitted that the order for contact should be "suspended." She enrolled a motion for leave to appeal to the Supreme Court.

[43] On 16 June 2011 the petitioner informed Relationships Scotland that the proposed contact meeting would not take place.

[44] On the same day the petitioner wrote to our clerk to say that she would not attend the hearing on 29 June 2011 because she had been signed off work by her doctor for three weeks following a miscarriage. She enclosed a copy of a certificate from Dr M Yule, Kinghorn Medical Centre, which was not written on soul and conscience. On 23 June 2011 the petitioner submitted a letter from Dr Yule stating on soul and conscience that the petitioner was unable to attend the hearing due to "her current mental health". The certificate did not specify why she was unable to attend court or when she would be able to do so. In a covering letter the petitioner said that she was suffering from anxiety and depression. She asked that a new date be fixed "outwith the end of my anticipated length of illness" and taking account of her plans for a summer holiday. The hearing was then discharged and a new hearing was fixed for 6 July.

[45] On 5 July the petitioner submitted a certificate from Dr Yule to the effect that she would be unable to attend court. On 6 July the petitioner sent an email to the court at 9.43am saying that she would not attend. We therefore pronounced an interlocutor ordaining the petitioner to appear on 13 July and ordaining Dr Yule to appear at that date and to produce the relevant medical records of the petitioner.

[46] At this diet the petitioner told us that she had not withdrawn her defences to the sheriff court action nor abandoned her appeal to the sheriff principal. She also confirmed that she had recently attempted to lodge a further minute in the sheriff court process for variation of the award of contact to nil. In addition, she made it clear that, although the respondent had in fact seen the child on 9 July, this was not the result of any voluntary act on her part since she had every intention of terminating such contact in pursuance of her minute for variation of 17 June.

Conclusions

[47] This case exemplifies yet another attempt by a custodial parent to sever the bond between the other parent and their child by means of delaying tactics and in due course by protracted defiance of an order of the court. This court has already made clear its disapproval of such conduct (TAM, Petr [2009] CSIH 44). The petitioner presented a confrontational challenge to the authority of the sheriff by wilfully defying his interlocutor of 16 November 2007. Her defiance not only thwarted the respondent's rights but undermined the rule of law. Conduct of this kind constitutes a grave contempt of court. It cannot be said that the sentence imposed was excessive.

[48] On 4 May 2011 and on 1 June 2011 we continued consideration of the question of sentence. We did so with the child's interests in mind and in the hope that the petitioner would see sense. The petitioner has exploited those opportunities. Her various assurances that she would allow the respondent to have contact in terms of the original order, that she would withdraw her defences to the sheriff court action and that she would abandon her appeal to the sheriff principal have been shown to be false. They were simply part of the manipulative stratagems by which for several years she has frustrated the respondent's attempts to obtain contact with his child.

[49] The present process has gone far enough. We shall now refuse the prayer of the petition so far as it relates to sentence.

Contempt of court (Court of Session)

[50] There remains the question whether the petitioner is also in contempt of this court in respect of her breach of the undertaking dated 13 November 2009 that she granted in foro. We shall appoint a hearing to be held on 4 October 2011 at which we shall hear submissions on that question and on the question of sentence, if it should arise.