Scottish Sheriff Court Decisions

 

STIRLING, 30th September 2009.

 

I found the following facts admitted or proved:-

 

1. The Pursuer and Defender are respectively the father and mother of T N B (aged 12). The second named Party Minuter is Curator ad litem to the child. The mother is the only person having parental rights and responsibilities in respect of T. T ordinarily lives with his mother and brother M in a village in Stirlingshire (hereafter "X").

 

2. By decree dated 24 January 2006, subsequently varied on 24 April 2008, the father was found entitled to contact with the said child inter alia every second Saturday from 10 am until 9 pm, every alternate weekend from 6 pm on Friday until 6 pm on Sunday; from 5 pm on the first Saturday of the school summer holidays each year until 5 pm on the third Saturday of the said holidays; from 12 noon on Tuesday until 5 pm on Saturday during the last full week of the school summer holiday each year. Each party knew and understood the responsibilities imposed upon them by the decree.

 

3. On 2 August 2009 T was with his father. He was due to be returned to X where his mother lives at 6 pm. On that date and at that time, the father and T were in Lochearnhead. T was contacted by his mother by phone call to his mobile phone at 6.30pm, by which time T should have been home. He said that he did not want to go home. The father made no attempt to return T to X.

 

4. T stayed in X from 2 August 2009 until 17 August 2009. The father did not try to induce T, or persuade him or threaten him (by for example the removal of privileges or treats) or order him to return to X, nor did he give the T any deadline by which he had to return.

 

5. His mother did not phone him, as she was concerned about his father answering T's phone. She knew that T would phone her regularly. He did so. On each occasion that she spoke to him, she told him that he should come home.

 

6. T was not due to spend the week from 3^rd August in X. He was due to spend that week with his paternal grandmother at a caravan in Leven. He had spent time in a caravan before with his grandmother.

 

7. On 6^th August the mother's agents wrote to the father's agents demanding the return of T. The curator was copied into this correspondence. T was not returned. The curator ad litem spoke to the father's agents on the 14^th August. He was told that the father could not coax T to return. The father made no meaningful attempts to have T return

 

8. During the period of time when he stayed in Tullibody between 2 and 17 August 2009 he had friends to visit and to stay overnight, went fishing, spent time on motor bikes and visited Lochearnhead as well as members of his father's extended family. T was not scared to return to X. He treated the time spent with his father as an extended holiday. T and his father knew that he should have returned to X.

 

9. T returned on 17 August 2009 in advance of returning to school on 18 August 2009.

 

10. On or about the 24^th August the curator visited T at his home. During the course of the proceedings the curator has had difficulties fulfilling his role due to the antipathy of the father. The father is openly hostile to the curator and has been found in contempt of court on for interfering with the curator's attempts to obtain T's views. T was and is reluctant to discuss any matters with the curator because his father has told him not to co-operate with the curator.

 

11. On 24^th August he initially would not speak to the curator. He eventually relented. He told the curator that he understood the effect of the court order. He had not returned because he was having a good time. The curator then discussed T's wish to spend more time with his father. He was told that if he and his father demonstrated that they would obey court orders, the curator would support increased contact between T and his father. T understood this condition.

 

12. On or about the 25^th August the curator wrote to the father's solicitor proposing that if the father demonstrated that he would obtempter the existing court orders, the curator would support increased contact between T and his father.

 

13. On or about 1 September 2009 a Pre-proof Hearing called in relation to Minute and Answers procedure between the parties. Inter alia the Pursuer was warned regards the consequence of any failure to adhere to the Orders of the Court having regard to the failure to return the child during the period 2 - 17 August 2009. The Defender and the Curator had elected to take no further procedural steps in relation to the purported Contempt of Court because of the negotiations ongoing for T to spend more time with his father.

 

14. The negotiations were predicated on the adherence to Court Order by the Pursuer. During the 1^st September, the father's solicitor indicated that the father would not agree to any resolution proposed by the curator. He wanted a residence order on his terms. The father's position was and is that if T lived with him he would let him see his mother and brother "whenever he wanted."
15. On the same date T had an altercation at school with a fellow pupil R M, who lives in [another Stirlingshire village]; it was recorded in his school record as a "scuffle". T was upset by this, but there were no ongoing consequences at school or at home.

 

16. On 5 September 2009 T was due to be returned from a contact visit at 9 pm. At 3pm he phoned his mother saying that he was not well. He said that he did not want to infect his mother or brother. His mother told him that he had to come home as normal. At approximately 8 pm T received a telephone call from a boy in X. T perceived the telephone call as threatening. The father telephoned the local police office. He was told a police officer would attend at 10.30 am on the Sunday. He made no attempt to return T to X. No contact was made with the mother. T thereafter stayed with his father from 5 September to 13 September 2009.

 

17. On 6 September 2009 a PC Wilcox of Central Scotland Police visited T and his father at Tullibody. The officer was not acquainted with the background, nor the existence of courts orders, non harassment orders, nor previous police involvement. He noted that threats had been received. No formal complaint was made. No names were given to him. He tendered advice, principally that T should tell his guidance teacher at school. This advice was given because the officer was under the clear impression that the threats had their origins in a dispute at school.

 

18. On Monday 7^th September, which was a school holiday, the Pursuer took T to Glasgow and bought him 3 shirts, a pair of trousers, a jumper, shoes and a new school bag. T had a school uniform at X. No attempt was made to persuade T to return to X.

 

19. Whilst in Glasgow, the father visited his solicitor. T sat in the waiting room. Inter alia the Pursuer received advice that T should be returned as he was in breach of the Court Order. T was not returned.

 

20. On the 8^th September, the father took T to school at Wallace High. They met T's guidance teacher at the entrance. Both T and his father told her that he was now living in Tullibody. T said he was scared of going back to X. She was not aware of the family circumstances or the existence of court orders. On or about the 9^th or 10^th September, after the school staff had appreciated where T should have been living, there was a further meeting at school between T, his current and previous guidance teachers. T was told that he should return home to X. He said that he was frightened to and that he had made arrangements to have friends visit him in Tullibody which he could not re-arrange. His mood was more adamant that frightened. He had not displayed any fear in the school environment.

 

21. On or about 11 September 2009 the curator enrolled a minute to have the father found in contempt of court. The minute was warranted and intimated that day by facsimile. As a result of the intimation, the father's solicitor telephoned the father. The telephone conversation took place on speaker 'phone in the Pursuer's car. T heard the telephone call. Inter alia the Pursuer was again told that T must be returned having regard to the Court Order.

 

22. T was reluctant to return home. He agreed with his father that he would return on the Sunday, the 13^th September. On the morning of 13 September 2009 he was sick, purportedly as a result of being worried about returning to X, but just as likely because he was worried about the consequences of him having stayed for so long with his father.

 

23. T was returned at about 8.30 pm or so on 13 September 2009. During the period 8^th-13^th September, T attended school every day, getting the bus every day except for the 8^th. He had friends to stay during that week. There was no reason for T not to return.
24. During the period from the 5^th to 13^th September, the father did not try to induce T, or persuade him or threaten him (by for example the removal of privileges or treats) or order him to return to X, nor did he give the T any deadline by which he had to return until the 11^th September when the father became aware of the existence of the minute for contempt. Even then, he proposed that T return some Forty-eight hours later.

 

25. T attended school on the 14^th September. During the school lunch break on 14 September 2009 T telephoned the father. He said that he did not want to go back to X. There was no basis for him to be concerned about returning to X. He asked the father to pick him up. The father agreed to do so without making any further enquiry or challenging T and picked him up on a pre-arranged basis outside Wallace High School.

 

26. The father was himself due to be in Glasgow that evening attending an appointment with his legal representatives. He dropped T at his sisters, travelled to Glasgow and, on his return, took T to X.

 

27. He received advice inter alia on 14 September that T was to be returned.

 

28. The father told his legal representatives that on 14 September he had met T by chance outside Wallace High School and that the meeting had not been pre-arranged. He told them that knowing it to be untrue.

 

29. As a result of that representation, Answers for the father were lodged in this Process (No 54) which state inter alia:-

 

30. "The Pursuer and Respondent was in Stirling the following day, Monday 14 September. Driving home he passed the child's school. The Pursuer and Respondent saw the child at a bus stop - sitting on a wall, head down. The Pursuer/Respondent "tooted him". The said child "burst out crying". The said child went into the Pursuer/Respondent's motor car. The said child's position was, I don't want to go back there dad. The Pursuer/Respondent told the said child he did not have time to talk with him."

 

31. That passage was entirely untrue.

 

32. On or about 16 September 2009 these Answers were lodged at the Bar of the Court and represented to be true. Inter alia, during the course of the Hearing on 16 September 2009 the father was interdicted from having contact, directly or indirectly with the child pending the Minute of Contempt Hearing and the contact order was suspended ad interim.

 

33. On the same date, after the court hearing, the curator arranged to visit and speak to T at his school. In advance of that meeting he had discussed the situation with the mother. She had agreed that to avoid any contact between T and his father, as ordered on the 16^th September, the curator should ask T to surrender his mobile telephone.

 

34. T was reluctant but relented and passed his phone to the curator. He was told again about the importance of the adherence to court orders and that he should have no contact with his father. In the course of that meeting, or the next day, T became aware that his father had been seen picking him up from within the school grounds, in contradiction of the account that they had met accidentally

 

35. Consequently, and notwithstanding his knowledge that he should not contact his father, and the existence of the court order preventing the father from having contact with him, on 18 September 2009 T telephoned the Pursuer from a friend's mobile 'phone. Notwithstanding the interim interdict, the father engaged in conversation with T for between five and ten minutes. Inter alia, T told the father that he had been visited at the school by the curator and that he had been seen getting into his father's car at school on the 14^th September. He asked if he would see his father at the weekend.

 

36. The father realised that the untrue account given to his legal representatives would be undermined and revealed by the fact that he was seen. On or about 3.30 pm on 18 September 2009 he telephoned his solicitors to give them the true account in terms of Finding in fact no. 24.

 

37. Had T not told him that they had been seen, the father would not have disclosed the true position and would have continued to perpetrate that particular false story both to his agents and to the Court.

 

38. The untrue story was not in any sense to protect T but to protect the Pursuer from any suggestion of a wilful Contempt of Court. It had the effect of deflecting blame from the father to T.

 

39. As a result of the untrue account given, both solicitors and Counsel withdrew from acting for the father on the first day of Proof on 21 September 2009.

 

40. On 20^th September the curator visited T at his home; he confirmed that he understood the need to adhere to court orders. He wished to give evidence.

 

41. T was not frightened to return to X during the period 2nd-17^th August, nor for the period 5^th-13^th September, not for the 14^th September. There was in any event no reason for him to have been frightened to return home. The father took no meaningful steps during these three distinct periods to coax, persuade or order T to return home. The father is perfectly capable of imposing that order and structure on T. He deliberately chose not to.

 

42. The responsibility for the three distinct failures to obtempter the orders of court is primarily is the father's. Any arrangement to regulate where T lived would require that he maintained relationships with his father his mother and his brother. When he stays with his mother he can maintain relationships with all three. His father has by his deliberate actions since the 2^nd August, undermined and disrupted T's relationships with his mother and his brother. All detentions beyond the time allowed by court order were wilful intentional and flagrant acts by the father rather than through inadvertence, misunderstanding, error, acquiescence, T's indisposition, emergency or other excusable cause.

 

FINDS IN FACT AND LAW; that the father is in contempt of court in respect of his wilful and intentional failure to obtempter the court order of 26^th January 2006 as amended and that as follows;

By failing to return T during the period 2^nd to 17^th August

By failing to return T during the period 5^th to 13^th September

By picking T up from school on the 14^th September and returning him after 8.00pm.

Seperatim, the father if in contempt of court by an abuse of process in that he cause and permitted pleadings which were untrue, and which he knew to be untrue, to be lodged with the court.

 

 

 

NOTE:

Background

 

[1] This is another unhappy chapter in relation to these long running proceedings. It is worth putting this Minute Hearing in context as Mr B (and both of his sisters who gave evidence) complained inter alia about the length of time that this Court action had taken (they attributed 7 years to it).

 

[2] This particular chapter starts in relation to the Decree dated 24 January 2006. That Decree was granted as a result of the signing of a Joint Minute. The arrangements in finding in fact no.2 were agreed

 

[3] Within a very short space of time, Mr B lodged a Minute seeking variation of the contact. There was sundry procedure, much of it during which Mr B was unrepresented, and much of it during which he displayed an unwillingness to adhere to the rules, conventions and courtesies of the Court.

 

[4] Thereafter, after sundry procedure, in April 2007 he unequivocally withdrew from the process having been afforded a number of opportunities to obtain representation or represent himself.

 

[5] Having thought better of that, Mr B sought in November 2007 to be reintroduced to the process. By interlocutor of 1 November 2007 that was refused; however, Mr B appealed and the Sheriff Principal allowed a Minute to be lodged. That Minute still sought only a change to the contact arrangements.

 

[6] After further procedure, a Proof in relation to a Minute by the Defender to reduce contact to nil and a Minute by Mr B to increase contact proceeded. This began on the 13^th March 2008, continuing on the 23^rd April. During the course of that day's evidence, and for the first time in the course of these proceedings, the Pursuer decided that it would be in T' best interests for T to reside with him.

 

[7] That Proof was discharged; a Minute was in due course lodged by Mr B seeking residence. Thereafter the matter has called procedurally to monitor the operation of contact and, in particular, Mr B's adherence to contact and T' progress. A further Proof was assigned by interlocutor dated 13^th March 2009 to take place on the 21^st September and six of the next nine court days.

 

[8] Numerous pre-Proof Hearings took place at which concerns were expressed about Mr B's adherence to interlocutors. He retained T between 2 and 17 August. At the Hearing on 1 September 2009 parties' conviction was that Proof diets should be preserved and discussions continued in relation to whether, on a trial basis, T may have increased contact with his father.

 

[9] Notwithstanding the obvious forbearance of the mother and the Curator, and the warning given on 1September 2009, Mr B retained T between 5 and 13 September 2009 and then again on 14 September 2009 provoking the Curator's Minute for a Contempt which was lodged on 16 September 2009 which went to Proof on 21 September 2009.

 

[10] Most of the blame for any delay is attributable to Mr B. Mr B claims that he wishes certainty for T but the certainty which he seeks has only crystallised now that he is convinced that the certainty is that T stays with him.

 

[11] Mr B is convinced that T is unhappy in X. There is well established procedure for determining what is in the best interests of a child. That procedure is on-going in relation to examining what is best for T. Mr B's conviction was untested, and unsupported but was considered by him to be sufficient, not only to retain T but, significantly, justify him telling T' teacher on or about 8 September 2009 that T was going to live with him.

 

Contempt proceedings -The evidence

 

[12] Although the minute was enrolled by the curator, because it was accepted that T had not been returned, ex proprio motu the father was ordained to lead at the evidential hearing.

 

[13] Mr B chose to give evidence himself; thereafter, his sisters, D S and A T gave evidence before Mr B called T to give evidence. T was assisted by the support of a supporter from the Witness Service. He called the mother as his final witness.

 

[14] Plainly Mr B's solicitor having withdrawn, there was no-one to examine him in chief. I attempted to assist by giving him a framework through questioning to give his account. He was at pains to say that he was confused about dates although of course the earliest matter about which he was giving evidence was 2 August of this year. He was unable to remember where he was on 2 August, whether he was in Lochearnhead or not. He initially gave evidence that he had taken T and his sister on 2 August to X and tried to persuade him to get out of the car. He then gave evidence that that was on the 5th September before reverting to 2 August. His sister did not support his account, recollecting that the attempt to return T took place some time later in August. T's evidence contradicted his evidence. I did not believe Mr B.

 

[16] Part of the basis on which Mr B tried to persuade T to return was by saying, "We are going to get into trouble if you don't' go back". He said in his evidence that during the whole period in August, he did not take T anywhere and that they didn't do anything special; it became clear in cross-examination that a number of matters were arranged for him and that there were no sanctions imposed at all. I did not believe Mr B.

 

 

[17] Although he was disadvantaged to some extent by the absence of a solicitor and Counsel who had initially been instructed to represent him, he did take the opportunity to criticise the preparation of the pleadings, in particular, their failure to mention any police involvement on the weekend of 5/6 September; he also blamed them for reference to a speaker telephone conversation on 11 September 2009, maintaining that it was the 13^th September I did not believe Mr B.

 

[18] He gave evidence that T had received a 'phone call on 5 September 2009 that boys from X were threatening to "stab him" or "cut him". T had become upset. Mr B had 'phoned the police who could not send someone until 10.30 the following day. T would still not go home because he was scared. So far as 5 September 2009 was concerned, his evidence was that T had received a 'phone call about 8 pm. The 'phone call was to the effect that T was going to be stabbed and cut. T' evidence was that he was to be "battered". Again, I prefer T' account. Mr B elevated what was plainly some kind of confrontation which was no doubt upsetting to T into a more serious threat with a view to retaining him in Tullibody. He said that it was only the intervention of the third party, that was Mr J (Mr B's solicitor), telling Mr B in T' earshot or T directly that convinced T to return. I did not believe Mr B.

[19] He gave evidence that on Sunday 13 September 2009 (when he was pressed about whether it was Sunday) T apparently heard Mr J (Mr B's solicitor) say "He must go home". Mr B said that T took stock of that. He did not know why T would not take advice from him. T was returned within 5 hours. He claimed that Mr J (Mr B's solicitor) had spoken to T. I did not believe Mr B.

 

[20] He then gave evidence of having received a telephone call on 14 September 2009 at lunchtime from T wanting a lift from him. T was scared. Boys had been "eyeballing him" and he did not want to get the bus back to X. Mr B picked him up and took him to his sister Alana's, as he had an appointment in Glasgow.

 

 

[21] He was asked why he had misrepresented what happened on 14 September 2009. His explanation was that it was to protect T. When it was put to him that it was more likely that it was to protect himself, he said that he was under pressure, he was rushed, he had only glanced at the papers prepared on his behalf. He had a scared child who had been eyeballed and threatened. He did what any father would have done.

 

[22] Mr B variously in his evidence and submission characterised this misrepresentation about the events of 14 September 2009 as "a white lie", a "little white lie". He also said "there's more to life than Courts" and that he had done what any father would have done. He suggested in his evidence that the misrepresentation was done to protect T. The actual effect was to protect himself and expose T to involvement in scheming and connivance with his father.

 

[23] Mr B's evidence was that T had required the intervention of third parties to have him return home.

 

 

 

T' Evidence

 

[23] T gave evidence on 23 September 2009. He was supported by a representative from the Witness Service. I admonished him to tell the truth given that he was 12. Counsel removed their wigs and gowns and the Court was cleared.

 

[24] When T first came in to give evidence Mr B told him to smile and relax but these were barked out as if they were orders from military superior rather than an attempt by a parent to put a child at ease. T in fact responded, "You're upsetting me".

 

[25] Mr B's techniques for preparing T for his return to his mother's were curious. Apparently he would sing to T "Guess who's going to X today?" (to the tune of Camptown Races). This was an apparently jokey way of reminding T he had to go home. T in his evidence said he found it a bit annoying although he tried to treat it as a joke. T plainly did not find it amusing.

 

[26] The giving of evidence was plainly an ordeal for T who was often tearful, sometimes confused and sometimes plainly torn about what he should say. He seems to be an articulate, well-mannered and well-spoken little boy but watching him give evidence was a very uncomfortable experience. Mr B chose to subject T to this presumably on the basis that T would assert clearly his reluctance to return to X thus demonstrating that Mr B was powerless to force him to go back.

 

[27] However, it was clear from T' evidence that he had a responsible attitude to what adults told him. His dad was the boss. If he was told firmly that he had to go back to X by his dad, his former educational psychologist Witney Barrett, a policemen or a social worker or indeed Mr Barr or Mr J (Mr B's solicitor), then he would have returned. His reluctance to return was because he was having such a good time and partly because he didn't like X.

 

[28] He accepted that on 2 August 2008 the first contact made with his mother was at 6.30 (half-an-hour after he should have been back in X) when his mother 'phoned him. He was in Lochearnhead. That undermined wholly Mr B's assertion that they had tried to return T.

 

 

[29] No sanctions were imposed upon him, no threats made of the removal of treats or privileges, no meaningful attempt made to have him returned. The height of the attempts to return him seem to have been Mr B saying to him that he would have to go home but without imposing any deadline on that, fortifying the notion that T was allowed to do what he wanted but that if he had been told to return to X he would have done so.

 

[30] He was asked about the 5^th September. His initial evidence was that he phoned his mum because he had a bad cold and he did not want to give his germs to M. He was told he had to return to X. It was only when asked twice more about what caused him to stay that he remembered the apparently threatening phone call. I accept that he did receive a 'phone call on 5 September 2009. He was subject to fair but robust cross-examination on that point. However, T made no mention of cuts or stabbing. Some boys in X were going to "batter him". He felt that his mother down-played it when he spoke to her on the telephone that evening. Miss R remembered no such call on the Saturday. When he went back to school on 8 September 2009 (having been kitted-out in a new uniform in Glasgow on 7 September 2009) he told his guidance teacher that he was living in Tullibody. Mr B told her the same thing.

 

[31] He knew that was wrong. He knew he shouldn't have said that. What's more, T was told by a teacher, by that time in possession of the whole background circumstance, that he should return to X. He said he could not because he had arranged for friends to visit him at his father's house in Tullibody. He accepted that he also had friends to visit him in Tullibody during August. That would not have happened without his dad's say-so. His dad was the boss.

 

 

[32] He did not mention in examination-in-chief any direct communication with Mr J (Mr B's solicitor). Eventually he indicated that he thought he had heard a conversation on the afternoon of Friday 11 September 2009 after which he said to his dad that he would go back on the Sunday. No attempt was made to take him back earlier.

 

[33] So far as 14 September 2009 was concerned, he gave evidence that he had 'phoned his dad. He was concerned about being "eye-balled" at school. His dad picked him up and took him to his aunt Alana. He was in touch with his mum and was driven home some time between 8.30 and 9pm.

 

[34] On the Wednesday of that week Mr Barr spoke to him at the school. It became evident to T during that week that Mr B had been seen picking him up from the school on 14 September 2009.

 

[35] In examination-in-chief T initially denied having had contact with his father after 14 September 2009. He then accepted he may have 'phoned him on the 18th but couldn't remember what was said. It was only when pressed that he remembered telling him that Mr Barr had visited him at the school and that he may have told his dad that his dad had been seen in the school car park. That whole chapter of evidence was obviously difficult, stressful and upsetting for T and I think it is reasonable to surmise that that was because he knew that the true situation was unhelpful to his father because of the existence of Court Orders.

 

[36] It was clear from his evidence that he loved both his mother and father. He was clear that his father had discussed with him that T should come and live with him as had his aunts. That is in breach of an undertaking of 28 April 2008 when Mr B undertook not to discuss the question of residence with T.

 

 

[37] Mr B called Miss R. The circumstances behind that were that initially Mr Burr for the Curator indicated he proposed to call Miss R. However, at the conclusion of the evidence on 23 September 2009 he intimated that it was no longer his intention to call Miss R; he would call only Mr Barr.

 

[38] When the matter resumed on 24 September 2009 Mr B indicated his intention to call Miss R as he wished the Court to hear from her. Mr Burr then said that if it assisted the Court or Mr B he would undertake to call Miss R but Mr B was content to call her as his witness. The whole examination of Miss R took a relatively short period of time. Mr B effectively asked her what steps she had taken to try to recover T. He suggested to her she could have called the police or the Social Work Department. She said that she was content to leave the matter with her lawyers. She had been told by the police before that it was a civil matter when a child does not return after contact. She was asked about a previous occasion when the police had been called. She said that some 5 years or so ago she had called the police because T had not been returned and Mr B and T had mentioned something about leaving the United Kingdom. She had been concerned. She knew where T was and he tended to be in touch with her.

 

[39] She gave evidence that after 9 o'clock she tends to take the 'phone off the hook. She has her hands full managing M, who is severely autistic and she cannot deal with the added pressure of a stream of 'phone calls from T telling her that he wanted to stay with his dad. The position was that T 'phoned her on a regular basis almost daily in the period 2 - 17 August 2009. The 'phone calls were slightly less frequent than the period from 5 - 13 September 2009. At no time did she tell him that he could stay. She asked him on every occasion to return home.

 

[40] So far as 2 August 2009 was concerned, her evidence was that she had 'phoned T at about 6.40 pm. He had been due to return for 6 o'clock. He was to go to Leven that night or the following day. T told her he was in Lochearnhead. He was having a good time. He didn't want to come home. She told him he should come home. She said that after his call she took the 'phone off the hook that evening. He did not mention having fears or concerns about returning to X.

 

[41] She did not want to 'phone T because there was the possibility that Mr B would answer the 'phone and she did not want to get into direct discussions with him. She knew that T would 'phone.

 

[42] So far as the incident on 5 September 2009 was concerned, Miss R gave evidence that T 'phoned her on the afternoon of the 5^th. He said he was not well; he was worried about M getting his germs. She told him he should come home immediately or in any event by 9 o'clock. She received no further 'phone calls that night. She received a 'phone call on the Sunday morning from T. He said he had been threatened and the police had come round. She had told him that it was probably a joke between kids and that he should come home. She denied being unhelpful or having not treated it seriously.

 

[43] In cross-examination she had said that she had contacted her lawyer as soon as possible after T was retained on 2 August 2009. The Monday was a holiday so she did not speak to anyone until Tuesday 5 August 2009. A letter was sent to Mr J (Mr B's solicitor) on 6 August 2009 asking for T' immediate return. She understood that a Motion had been enrolled with the Court asking that T be returned.

 

[44] She also said that on 14 or 15 September 2009 in discussing bikes T had told her that his dad would buy him a 125 cc bike if he went to stay with him.

 

[45] In re-examination she was asked if T had a social worker. She confirmed that the family had a social worker, Sarah Breslin. She had not 'phoned the social worker because she did not need to. She was not happy for him to be with his dad. T constantly 'phoning was stressful and upsetting. Mr B suggested that Miss R should have enticed T home.

 

Curator's case

 

[46] Mr Burr for the curator called the curator and Mrs Buchanan, T's pupil guidance teacher as witnesses.

 

[47] Mr Barr is a 50 year old local solicitor who was appointed by the Court in relation to contact action on 30 June 2006 although he had prior involvement in the case. He gave evidence about the existing Contact Order and then about the circumstances giving rise to this Minute.

 

[48] He had been contacted on 4 August 2009 by Miss Comrie saying that T had not been returned. He was copied into correspondence between Comrie Pollock and Mr J (Mr B's solicitor). He spoke with Mr J (Mr B's solicitor) on 14 August 2009 and was advised that Mr B had been unable to coax T to return. He was advised on 18 August 2009 that T had been returned.

 

[49] He visited T at his home address on 24 August 2009. He described his personal relationship with T as difficult. He explained that Mr B was openly hostile to his role and his participation and accordingly T was reluctant to speak to him. He had parked his car out of sight of T' house and went into the house. T returned home from school with an ice cream for his mum, saw Mr Barr and then disappeared upstairs. Miss R was unable to coax him down but Mr Barr, having spoken firmly to him, managed to get him to come downstairs. He ascertained that T understood the Court Orders and when he was due to be back. T understood that the situation was serious. He said that he had not returned because he was having a good time. Mr Barr explained that T' behaviour would have consequences for his mum and dad. T knew that his dad could be imprisoned. After he had satisfied himself that T understood the serious nature of breaching a Court Order, Mr Barr then discussed with him the possibility of extending the time that he spent with his father.

 

 

[50] Mr Barr explained that he has had to be strict with T. Mr B had been previously guilty of Contempt of Court in relation to interfering with Mr Barr's role as a Curator. He had frequently asked the Court for his removal and T' attitude to Mr Barr is informed by that. He can be initially sullen and uncommunicative. Mr Barr gave evidence that T should not be allowed to control the discussion, so he has to be firm. He always tried to end on a more positive note; they spoke about T's desire to stay with his father. T' expressed wish is to stay with his father, but also to see his mum and his brother M.

 

[51] Mr Barr had previously discussed the practicalities of maintaining all the relationships. T has accepted there are practical difficulties. Mr Barr had told T that if he could be satisfied that he would go and see his mum regularly and that both T and his father would obey Court Orders, then Mr Barr would support more contact between T and his dad; this was on the basis that certain conditions were complied with. T repeated in the presence of his mum the nature of the discussion.

 

[52] On 25 August 2009 Mr Barr wrote to Mr J (Mr B's solicitor) proposing that if Mr B was capable of sticking to the Court Order and, subject to approval of the Court, he would support increased contact.

 

[53] Mr Barr explained the difficulty was that this case could not be seen in stark terms of contact and residence; it was about maintaining relationships between T, his mum, M and his dad. Mr B put his relationship with T to the fore, undermining the other relationships which T had.

 

[54] He said that as a result of the retention beyond the 2^nd August, a Motion had been considered on behalf of Miss R, to find Mr B in Contempt of Court. On 1st September 2009 Mr Barr said that it was made clear to Mr B that he would require to obey the Court Orders. Mr B was advised of this by his solicitor who confirmed this to Mr Barr. He left the Court hoping and believing that there would be no further breaches of Court Orders as Mr B was achieving what he wanted, that is increased time with T with a possibility of residence. However he did say, in answer to questions from Mr Jack that it was clear during that same discussion that Mr B wanted the matter resolved on his terms, that is not proceeding on the basis of a proposal from Mr Barr. Despite the fact that matters were moving in the direction which Mr B sought, he still reserved the right to thwart progress. Mr Barr described him as pushing at a door Med "pull"

 

[55] On 8 September 2009 he was advised that T had not been returned that weekend. He learned from Miss R's agents that T had been too frightened to return. He left a message to speak to Mr J (Mr B's solicitor) and eventually spoke to him. Mr J (Mr B's solicitor) told Mr Barr that T had received a 'phone call which had been reported to the police. Mr Barr sought details which Mr J (Mr B's solicitor) said he would get back to him with but never did.

 

[56] He learned from Miss R that the police officer involved was a PC Wilcox. On 9 September 2009 he spoke to PC Wilcox. PC Wilcox told him that on Saturday 5 September 2009 Mr B had 'phoned the police and said that his son had received threatening 'phone calls. A police officer was not available until the following morning. PC Wilcox went out to the house. He did not know of the history of T, the existence of any Court Orders or Non-Harassment Order or previous police involvement. He thought he had been called by a concerned father about a serious threat and dealt with it on that basis. No formal complaint was made. No names were given and PC Wilcox had noted that there were threatening calls from boys with whom T went to school. The principal advice he gave was to tell his guidance teacher as soon as he went back to school. He noted the threat was that T would be stabbed. He was certain he was told it was boys T was at school with otherwise he would not have mentioned telling the guidance teacher.

 

[57] Mr Barr then contacted T's school (Wallace High) eventually speaking to his guidance teacher, Mrs Buchanan. She said that T had commenced school on 8 September 2009 with his father. There was then reference to an incident and Miss Buchanan took T to his tutor group. T had no concerns at school. He was happy and content. He had referred to the 'phone call. He had given no names. One of the boys may have been at school but he was not concerned about the school environment. The school environment was apparently safe.

 

[58] T was still not returned. Mr Barr enrolled a Motion for Contempt of Court. It was intimated by fax on 11 September 2009. Mr J (Mr B's solicitor) was in his office, as Mr Barr had ascertained that before sending the fax copy.

 

[59] On 14 September 2009 Mr Barr received a 'phone call at about 5 pm from either Miss R or her agent to the effect that T had gone with his father. Mr Barr suspected no co-incidence. The case called in Court on 16 September 2009 when his Motion, which included Craves for interim suspension of contact and interim Interdict, was calling. He voiced his suspicion that it was highly unlikely that Mr B had just been passing the school

 

[60] On 16 September 2009 he arranged to see T at Wallace High. T was not told of this in advance. Mr Campbell brought T to see him although T was reluctant. They were shown into a private room. Mr Barr reminded him of the conversation on 24 August 2009. He reminded him of the serious consequences. He was told not to contact his father having regard to the interim Interdict. Mr Barr asked him for his 'phone and T handed it over. Mr Barr had only done this having discussed this in advance with F R the only parent with parental responsibilities.

 

[61] He told Mr Barr he had received a 'phone call on 5 September 2009 which was threatening. He then told him that he had 'phoned his dad on 14 September 2009 to come and get him. T became upset. Mr Barr required to advise him that there were consequences to T' mother and father. Mr Barr was concerned because T and his father were complicit in breaking a Court Order. T was aware of that and the consequences, one of which may be that there is no contact. Mr Barr had also discussed with him the children's hearing system in the event that he was deemed to be out of control because he would not do as he was asked.

 

[62] On 20 September 2009 he visited T in his home. T saw him without difficulty. He wanted to give evidence. He was clearly of the view that T understood the obligations imposed by the Court Order and the consequences if it was breached. It was the first time in his role as a Curator that he had enrolled a Motion.

 

[63] In cross-examination Mr Barr confirmed to Mr B that this was the hardest case he had dealt with in the whole of his legal career. Mr B's cross-examination was not focussed. He asked Mr Barr about alternative means of recovering T. He tried to ask him about what note-taking he used as a Curator. He suggested to Mr Barr that his actings were motivated by vengeance. Mr B challenged the notion that he had undermined Mr Barr's relationship with T. Mr Barr explained that Mr B had threatened him, harassed Miss R and her solicitor, been found in Contempt of Court, been the subject of an Anti-Social Behaviour Order, both in respect of Miss R and her solicitor and had been convicted of a Breach of the Peace in relation to Miss R and a breach of the Anti-Social Behaviour Order, the last being as recently as 10 September 2009.

 

[64] Mr Barr told Mr B that he regarded it as appropriate to have told T that one of the consequences of his behaviour could be that Mr B was imprisoned because although he was young he was old enough to understand that his actions had consequences.

 

[65] Under cross-examination from Mr Jack. Mr Barr said that without a doubt T saw the extra period in August as an extra holiday. He had told Mr Barr that he didn't think that he had done anything wrong. He said "there's no harm done"; there was no real sense of something wrong having occurred. In T's view they were having a good time.

 

[66] Mr Barr said that if an adult spoke in firm way then T is likely to behave and respond appropriately; that was Mr Barr's own experience. He said the only time T had ever in terms refused to do something was when he first asked him to handover his phone on the 16 September; he did hand the phone over when asked again. Mr Barr's impression was that he responded to clear and understandable instructions from both mother and father.

 

[67] He said that T is suspicious if Mr Barr asks anything at all about Mr B. In the early period of his time representing T, he was open with Mr Barr. However, Mr Barr would then repeat things told to him by T in his father's presence and T was plainly told by Mr B not to say anything.

 

[68] It was put to Mr Barr that Mr B was about to achieve what he seemed to want, that is T going to live with him. Mr Barr said that his view was that Mr Barr's influence over T over-ruled anything else that might be said or done. As far as T is concerned Mr B could do no wrong. He said that T worships his father. He influence prevails over everything else. In his view Mr B must have been complicit in and connived with the non return no matter what T's own view was.

 

[69] He recollected that on 1^st September 2009 after the court hearing he had a discussion with Mr J (Mr B's solicitor) he re-iterated the offer which had been made. That the question of residence would be considered provided Mr B could adhere to the Court Order. The response was that the residence had to be in Mr B's terms and effectively there could not be an acceptance that Mr Barr had negotiated a resolution. He put it like this; Mr B was pulling on the door Med push so that Mr Barr could not believe what he was hearing when the matter was so close to resolution.

 

[70] In the matter of adherence to Court Orders, he considered that Mr B had spun out of control; against a background of saying T will come and live with him, T was then retained on a flimsy pretext at the very next contact. Mr Barr said that the Court Order must be adhered to or else there can be no confidence that relationship can be maintained. T wants to maintain relationships with everyone but Mr B persistently undermines the relationship between T and his mother. The behaviour could not be rewarded in circumstances when T and Mr B have connived.

 

[71] He was firmly of the view that there was no good reason for T not to be returned in either August or September. He is firmly of the view that Mr B does not respect the Court Order. He was asked if Mr B would ever respect a Court Order, he thought that he could, so long as he understood and brought home to him the consequences of failing to obtemper a Court Order. Previous threats made and warnings giving in the Court Order have had no effect.

 

[72] He was achieving what he wanted in the contents of the Court Order but that was still not good enough. He considered that if a period of imprisonment was imposed, it would reinforce to Mr B the importance of T maintaining other relationships and Mr B's responsibility in that regard. Mr B considered that his view was justified in the interests of T and that no one else would tell him to do.

 

[73] The notion of the conspiracy or revenge was troubling to Mr Barr not because there was a shred of truth in it, but because it demonstrated a total lack of insight. He concluded his evidence by saying that it was without doubt the worst case that he had ever dealt with in his time in practice.

 

[74] After this Mr B was recalled because two matters were raised in Mr Barr's evidence which had not been put to him. The first, being the conversation with Mr J (Mr B's solicitor) and Mr Barr on 1^st September and the second being the assertion that no one would tell him what to do.

 

[75] I gave him the opportunity of giving a response to what Mr J (Mr B's solicitor) had apparently said, that residence would be in terms only and that he would not agree to anything negotiated by Mr Barr. He equivocated, saying that T could see his mother or brother whenever he wanted, without committing himself to obeying any court order, before finally saying that he would obey Court Orders. His ultimate commitment was unconvincing.

 

[76] The final witness was Francis Buchanan, Principal Teacher/Pupil Support at Wallace High School for Second Year. She had not met T before 8^th September 2009. She met him in the reception area when he was accompanied by his father. She recalled being told that a threat had been made to T. She thought that she may have been told that T was living with his father in Tullibody. It would not have had any significance for her and she has a lot of contact with a lot of pupils. T did not seem particularly concerned, had gone to his tutor group as was usual and she arranged to speak to him later on in the day. He had no issues that required him to be separated from other pupils.

 

[77] She did not recall T mentioning any names. The boys who had perpetrated the threats were not at school. T seemed settled at school.

 

[78] Later that week, she could not remember the exact date, she met with T again this time Mr Campbell who had been T' Principal Guidance Teacher in his First Year at school. Mr Campbell told T that he would have to go back to live with his mum, T was adamant that he was not going. She said he was more adamant than scared. He said he was still frightened to back to X. However, he also said that he had friends coming to Tullibody to his dad's house and if he went back to X he wouldn't be able to see his friends. She did not know what the most pressing reason was. She regarded him as a polite, well-mannered, well-spoken boy.

 

[79] Mr Jack had no witness to call. Accordingly evidence concluded and submissions were to begin on Tuesday 29^th September.

 

Submissions

 

[80] I heard from Mr Burr first in support of his Minute. He asked me to find that there were five material facts.

 

[81] The first was that Mr B wilfully failed to obtemper the Court Order by failing to return T between the 2^nd and 17^th August. Secondly, that at around 6.30pm on the 2^nd August T was in Lochearnhead. Thirdly, that Mr B wilfully failed to obtemper the Court Order by retaining T from 5^th to 13^th September; fourthly, that he wilfully failed to obtemper the Court Order by lifting T on 14^th September when there was no there was no entitlement to contact; and fifthly that that he lied to his legal advisor by fabricating a version of events, covering the 14^th September thus causing untrue and fallacious material to enter the pleadings.

 

[82] He reviewed the evidence but submitted that the Court was entitled to take into account the comments made by Mr B at the bar of the court, in particular that he had been in contempt again on the 18^th September by speaking to T by phone, and that he accepted having lied to his agent.

 

[83] He submitted that from the very outset Mr B's defiance was encapsulated in relation to the 2^nd August. The answers lodged on his behalf (which he did not admit were lies) were to the effect that he tried to return T. His evidence was that he did so by driving to X and trying to persuade him to get out of the car. He then changed his position saying that was the 5^th September before reverting back to the 2^nd August. That account was not supported by either his sister, Alana Taylor or by T who clearly remembered being in Lochearnhead on that date when a phone call was received from his mother. Mr Burr submitted that the supposed confusion about dates did not explain this discrepancy, as the answers, which he had the opportunity of reading twice, were clear.

 

[84] There is no evidence of any attempt to return T or any withdrawal of privileges, despite the answers. It was clearly an extra holiday.

 

[85] In relation to the period 5^th to 13^th September again the answers appeared to suggest T was taken to X. There was no evidence whatsoever about that. There may have been a phone call in which there was a threat but it was elevated far in excess of what it was. In fact, Mr Burr pointed out T's initial evidence about the 5^th September was about him having a cold and not wanting to give his germs to M. T himself then only talked about a threat to batter him. There was no mention of knives.

 

[86] In his submission T was not frightened. T had to be pressed to recall the threat; the nature of the threat was different for Mr B's account. He said he had phoned his mother; her only recollection of the call was in relation to his cold. When PC Wilcox spoke to T no names were given and the school was mentioned. In addition there was his presentation. T became upset when talking about the scuffle he had had at school with Ryan McNab. He was not upset about the apparent threats made to him. There was nowhere near sufficient concern to refuse to return him. The only person with responsibility for T's safety and security outwith Court is Miss R.

 

[87] He submitted that the notion that T would return because of a telephone conversation between Mr B and Mr J (Mr B's solicitor) on the 11^th September was not credible. Mr B could and should have exercised control. The purchase of the school uniform and the telling of the teachers demonstrated a deliberate intention for T to stay with him.

 

[88] The pleadings for the 14^th September were admittedly untrue and the fact that Mr B telephoned his solicitor to tell them this demonstrated that he must have known what the written answers said, or he would not have known that they were inaccurate. This demonstrates that Mr B did read the answers and approved them undermining any criticism of his legal representatives.

 

[89] He referred to MacPhail on Sheriff Court Practice and the Civil Evidence Scotland Act as well as Johnston v Johnston. He also referred to the TAM v MGS and the penalties available for the Court recognising the question of penalty was entirely for the discretion of the Court.

 

[90] Mr Jack adopted all of the submission of Mr Burr. He submitted that there was evidence beyond a reasonable doubt in relation to five discrete matters of contempt, the first being the period from 2^nd to 17^th August. He submitted that the contempt was manifest minutes after T was due to be returned to X because he was still in Lochearnhead. The Contempt was a wilful and intentional and defiant breach of a Court Order.

 

[91] In relation to 5^th to 13^th September T could and should have been returned at any time, T's own position was that he had a bad cold. He then said that he was going to be battered. There was confusion about who was to be blame and where the threat lay whether in the school or in X. The purchase of a school uniform on 7^th September was only consistent with him being retained. That period was a wilful and intentional contempt.

 

[92] So far as the 14^th September was concerned, there was a planned collection from the school grounds; this was a deliberate and intentional and wilful taking of T in complete defiance of a Court Order.

 

[93] He argued that the misleading of the court deliberately was an abuse of process giving rise to contempt of court. Mr B had accepted the lies told about the formulation of events for the 14^th September. He lied about the 2^nd August. He lied about acquiescence. He lied in evidence regarding the phone call on 11^th September. These abuses of process amount to a contempt of court.

 

[94] Finally, Mr Jack submitted that his conduct during the proof amounted to contempt of court. He dealt with the court with complete discourtesy and contempt including engaging in a shouting match with bench. He showed contempt for lawyers and for Mr Barr who described his attitude as out of control. It was not T who was out of control it was Mr B's adherence to Court Orders.

 

[95] He submitted that Mr B was wholly incredible. He had lied and lied again to protect himself and save his own skin and tried to entwine his son in that dishonesty. The matter continued as far as calling T as a witness. Mr B left court confirmed as a dishonest, unreliable, untrustworthy and disrespectful individual.

 

[96] He said that nothing more was expected of Mr B that any other litigant including a candid, frank and honest approach and the need to obtemper Court Orders. He constantly failed and fails to meet these basic requirements.

 

[97] His conduct cannot be acceptable or it sends out a wrong message to errant parents in the Sheriffdom and beyond. There is no prejudice against Mr B. There is no conspiracy against him; it is his dishonesty, his disrespect and his wilful conduct that have brought him to contempt of court.

 

[98] I allowed Mr B a brief adjournment before making his submission. He asked me to treat T's evidence with care because of the predicament that T was in when giving evidence. He submitted that T couldn't give good evidence because his parents were there and he felt that the Court should have had psychological reports to assess T properly and in particular his concerns about X.

 

[99] He thought that Mr Barr's evidence should also be treated with caution; there was not reason for Mr Barr to see T at school. This would have frightened and upset T, and undermined the value of any evidence.

 

[100] He had nothing to get out of the proceedings except his son being with him. He was subject to threats about T being removed from him.

 

[101] He submitted that he tried to get T to go home repeatedly. He asked him to go home. He had taken him to X. T would not go. He said that evidence of Mr Barr about what PC Wilcox had said, and of Mrs Buchanan should be treated with care.

 

[102] The purchasing of school uniform was not conclusive. He was in Glasgow to see his lawyer. T had wanted clothes and a school bag no malice or deceit, were meant. He has bought school uniforms before, as has his sister.

 

[103]He had repeatedly told T that he knew sooner or later he would go home. He described the other parties' as scheming. He said since he had been in front of the Sheriff Principal he had not contacted the agent or Miss R. He had respect for the Court. Despite his best efforts T would not return to X. There was no wilful contempt.

 

[104] Throughout the course of the proof, Mr B had given a clear account of his defence which can be put in this way:- T was responsible for the breaches of the Court Order by refusing to return home despite all Mr B's efforts to coax him; it was the responsibility of Miss R to either entice T back or have T returned by the involvement of police or social workers; thirdly, the attempt to have him found in contempt of court was part of revenge/conspiracy involving everybody in the Court expect for the Sheriff (and presumably the shorthand writer). At no stage did he take any responsibility for the breaching of the Court Order.

 

Mr B's pleadings

 

[104] I have referred to Mr B's assertion that the pleadings were not prepared in accordance with his instructions; he claimed that he had not read them properly. He had "glanced at" or "glimpsed" them. Any errors were the responsibility of his advisers. I do not accept that. As Mr Burr observed, he must have read and absorbed these pleadings, otherwise he would not have known what averments they contained about the events of the 14^th September.

 

[105] The pleadings were deliberately inaccurate in a number of respects. He claimed that he had tried to take T home on the 2^nd; that was untrue. He claimed that T had been threatened with the removal of privileges; that was untrue. He claimed that the mother acquiesced in the retention; that was untrue.

 

[106] In relation to the 5^th September, the pleadings do not mention any telephone call or threats. I have already documented the untrue pleadings in relation to the events of the 14^th September.

 

[107] These averments all appear as a result of deliberately untrue assertions made by Mr B in an attempt to evade responsibility. They are self serving and designed to place the responsibility onto T.

 

[108] Parties to actions often struggle with dates of events; few have the advantage which Mr B had of contributing to pleading and giving evidence in relation to events which began some seven weeks ago. I do not accept that any of the discrepancies which emerged arose from Mr B's difficulty remembering things, except where that difficulty arose as a result of his failing to remember the untrue version which he had previously given.

 

Contempt of court; the legal test

 

[109] I refer to MacPhail (3^rd edition) at para2.18 and the following paragraphs. Broadly, contempt of court is conduct which challenges or affronts the authority of the court or the supremacy of the law itself. In civil proceedings it may include failure to obtempter an order of court, and abuse of process. Any such failure or abuse which is wilful, intentional or inexcusably careless, or which involves misconduct or a flagrant disregard of the due course and administration of justice can be contempt.

 

[110] If there is a dispute of fact there should be a hearing; the standard of proof is beyond reasonable doubt (Johnston v Johnston 1996 SLT 499). In this case, being alleged contempt in civil proceedings, the provision of the Civil Evidence (Scotland) Act 1988 apply

 

Observations on the evidence

 

[111] What is clear is that T would have returned home had he been told to by any responsible adult. Mr B did not behave like a responsible adult in the conduct of these matters. T' evidence was very compelling that Mr B is "the boss" and if he had been told to go home and given a time by which he must return home, he would have gone.

 

[112] The calling of T was an attempt by Mr B to evade responsibility. The concerns that Mr B had expressed about bullying were not spoken to by T save for the 'phone call on 5 September 2009.

[113] In the end, I was left with the distasteful impression that T had been called in the hope that he would shoulder both the responsibility and the blame for the breach of Court Orders, a quite disgraceful position for Mr B to adopt. In the event T did not do that; he expressed his preference to stay with his father rather than his mother but also his clear position that if told that he had to return to X he would have returned.

 

[114] Bizarrely, during the course of him questioning T, he asked T questions that elicited the response that Mr B had been the best at clay pigeon shooting on one of their outings and that Mr B can do 110 press-ups uninterrupted.

 

[115] Whilst these were no doubt meant to impress, they have no bearing whatsoever on his abilities as a parent but rather fortify the view that Mr B has a high degree of self interest, self-regard, and arrogance. It was plain from his evidence that he regarded himself as someone who would not be told what to do by anybody (with the exception of T) and that he was strong, robust, independent-minded and would not do anything unless he wanted to do it.

 

[116] However, despite this presentation of himself as strong, in the one area of his life where what was required was responsibility and strong parenting, his response to that was to hide behind his 12 year old son. It was not enough that he passed the responsibility on to T in his pleadings by ascribing the blame entirely to T for refusing to go back despite attempts to persuade him (a version which the evidence did not support), he then called T as a witness.

 

[117] It was abundantly clear from T' evidence that had he been told to go home by Mr B, he would have gone home. Mr B called him in order to put him through the ordeal of being questioned. It was a grave abrogation of his responsibility as a parent and however tempting it must be to want to be T' best friend; that is not the role of the parent. What T needed was a firm hand, clear direction and an assurance that he, T, was not to blame instead of which Mr B provided indulgence, dishonesty, self interest and scheming, followed-up by a passing of the responsibility for the periods in August and September on to T.

 

[118] I was left after considering all of evidence being unsure about whether the threats and the consequent concern related to incidents at school or at X or both. The police officer was told that the school was the focus; the guidance teachers were told that the focus was X. One of the protagonists was at school with T and the matter seemed to have arisen from a fight at school with spill-over into X. The evidence does not seem to have elevated beyond many childhood spats, however unpleasant these spats are. They are nowhere near justifying the action taken in breach of a court order to retain T. I accept and agree with Mr Burr's observation that T seemed much more upset about the scuffle with R M which had taken place on the 1^st September; that preyed on his mind and cause more concern than the supposed threat

 

[119] Mr B's purpose in calling Miss R appeared to be two-fold. Firstly, he hoped to obtain some evidence that there had been a degree of acquiescence in the retention of T. This was emphatically denied; in the second place he seemed to wish to explore the possibility that Miss R was at fault for not having contacted T to entice him home, a line of questioning that shows a total inability to understand the responsibilities of the parent with contact. If Mr B was correct then no child need ever be returned at the end of a period of contact (or indeed for contact) unless there was a sufficient enticement for the child to do that.

 

Basis for decision

 

[120] I have no doubt that Mr B is in contempt of court because of his defiant, wilful and intentional actings.

 

[121] I deal with each episode separately

 

[122] Period 2^nd to 17^th August; Mr B was in breach of this court order from the outset; T should have been returned by 6.00pm on the 2^nd August. He was in Lochearnhead with his father. His mother had to phone him to find out where he was. There was no reason for T to stay except for the wilful and intentional failure of Mr B to return him. There was no threat of bullying in X. Mr B wanted T to stay longer and made it fun for him to do so. It may well be the case that T was due to spend further time with his father before school returned but that is nothing to the point. The failure was to return T

 

[123] Period 5^th to 13^th September; again Mr B was in breach from the outset. He had known form the 1^st September of the potential consequences for him if the court orders were breached; not just that he was in trouble with the court, but that any question of T spending more time with him would be jeopardised. His arrogant and self serving attitude caused him to retain T anyway. T did receive a telephone call, but it was nowhere near alarming enough to justify his retention.

 

[124] No contact was made with Miss R until the Sunday; she was, again, presented with a fait accompli. On the 7^th September Mr B purchased new school clothes for T. On the 8^th, his guidance teacher was told that he was living with his father. These actions cannot be reconciled with any meaningful attempts to have T return to X; in fact they demonstrate a decision that T will stay in Tullibody, in flagrant defiance of the court orders and process, giving rise to the inference that he sought to elide the whole court process by having T remain with him permanently on the pretext of T's reluctance to return to X. He was returned, reluctantly, on the Sunday night.

 

[125] Mr B's' continued and flagrant indifference to the Court Order is shown by the fact that he (and T) realised on Friday 11 September 2009 that a minute for contempt had been lodged and that a return was both necessary and inevitable; he still decided that the return would be on the Sunday with no suggestion or effort from Mr B to return him earlier. I also observe that the period from the 5^th -13^th September covered the date when Mr B was on trial for breaching a non harassment order.

 

 

[126] 14^th September; T phoned his father. Mr B should have said that T must go home. Instead, he arranged to pick him up and took him to his sister's because he had an appointment in Glasgow. Again this was a selfish, arrogant and defiant act, not justified by any reasonable caused, or any cause at all.

 

[127] Every one of these periods of retention demonstrate a wish to shore up his own position, increase T's reliance on him, and undermine T's relationships with Miss R and M, and to undermine the court process; the notion that these steps were all taken for T's best interest is itself contemptible

 

[128] Abuse of process; many parties to court actions will cause pleadings which are untrue or unsupported to be lodged; it is the nature of an adversarial process that one party's factual position may be held to be wrong. However in this case, Mr B has used the minute process to give an untrue, self-serving account of what happened with both the intention and consequence that his son T will be blamed for the failures to obtempter the courts orders; moreover, he then accepted that parts of it were untrue, including the threats/inducements to T, and the purported acquiescence.

 

[129] It is an abuse of process for a defender with no defence in fact and law to use the procedure of the court to delay the enforcement of a right which is undeniable. Mr B knew what he was doing and was unapologetic about it; in his view, the end seemed to justify the means; the end is that T will live with him. He will obtain that by any means. Mr B condemned himself with the assertion, in defence of the untrue pleadings about the 14^th September, that "there is more to life than courts," and his characterisation of the misleading statements as "white lies" and "little lies".

 

[130] Any apparent redeeming feature arising from his disclosure to his agents that he had misled them is wholly undermined by the fact that this disclosure only arose because he knew that he had been seen. His cavalier attitude towards the need for honesty in pleadings demonstrates contempt for the processes and procedures of the court, and a distinct and discrete contempt of court.

 

[131] Each of these episodes were deliberate, sustained, prolonged and in some respects pre-planned; these were no instinctive or ill-judged reactions, nor even inexcusably careless. I conclude that Mr B knew exactly what he was doing and did so without any thought to the possible consequences for himself and T and with a blatant disregard for the orders and processes of the court action.

 

[132] So far as his conduct during the proof was concerned, Mr Jack urged me to find him in contempt of court; he had shown disrespect to his opponents, their instructing solicitors, and the judge. Whilst his behaviour was unacceptable and at times intemperate, when I take into account that he had no legal representatives, that it was a matter of concern and importance, and that he did apologise in respect of an outburst to the bench, and that these were reactions to the progress on the proof, I am not satisfied beyond reasonable doubt in the particular circumstances of this hearing that contempt is established, although his behaviour may well in another, or indeed any other, context constitute a contempt of court.

 

[133] Accordingly I find that Mr B has been guilty of contempt of court in relation to four distinct and discrete episodes of behaviour.