Scottish Sheriff Court Decisions

2014SCDUM30

        SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

                                                                                    NOTE (No.11)

                                                                            (Defender’s Motion 28 of process in relation to contempt of court in connection with interlocutor of 18 July 2013)

          by

SHERIFF GEORGE JAMIESON

                                                                                                       in family action F27/12

C. A. F.                              PURSUER

    against

                                                            M. L. H. (AP)                   DEFENDER

                                                _____________________________________________   

DUMFRIES:                                              15 July 2014

Act: Party in person                                Alt: Maxwell

The sheriff sets out in the accompanying Note his reasons for finding the pursuer in contempt of court in terms of his interlocutor of 27 June 2014 and for pronouncing that part of the interlocutor of 2 July 2014 punishing her for that contempt of court; and, having made avizandum at the hearing on 2 July 2014 in relation to the expenses associated with motion number 28 of process from 13 June 2014 (the date the sheriff principal remitted this motion to the sheriff for its consideration in the first instance), to 2 July 2014, further reserves consideration of those expenses, and the expenses of process thereafter, to the Diet Roll of 11 September 2014 at 10:00am of the Ordinary Court that day to assign a diet of hearing on expenses on a date thereafter.

                 Sheriff George Jamieson

NOTE:

• [1]I begin this Note by setting out my understanding of some of the legal principles and practices relating to contempt of court in the context of orders made by the court under section 11 of the Children (Scotland) Act 1995 as this understanding underpins the decisions I have made on the facts of this case. Ms F, a party litigant, whom I have found to be in contempt of court, seems to think, as will be seen, it is for her to decide which orders of the court she will obey; this Note is intended to covey to her the gravity of her conduct and why it merits punishment; and to attempt to set out something of the context in which Ms F has come to be found in contempt of court. In dealing with the question of her contempt of court, I made an important distinction between applications under section 11 of the Children (Scotland) Act 1995 for an order relating to parental responsibilities and rights, where the paramount consideration is what is in the best interests of the children; and proceedings for contempt of court for not obeying such an order, where the court, having made a section 11 order, satisfied it is in the children’s best interests to do so, is faced with a wilful refusal to obtemper that order by one of the parties to the order. As in this case, the issue most often comes to light in the context of a parent with residence (Ms F) refusing to obtemper a contact order made in favour of the parent without residence (Mr H- the parties were married but have retained their own surnames). The order in question is dated 18 July 2013. It was pronounced by agreement of the parties, but as I had previous involvement in the case, I was willing to make it because I thought it reflected the best arrangements for the children at that time and it was better for the children to make the order than not to make it. On 19 April 2014, Ms F decided she would no longer obtemper this order. The case had been on appeal to the sheriff principal in relation to many other matters but not this. On 13 June 2014 he remitted the matter of contempt of court to the sheriff “in the first instance” to “proceed as accords”. The sheriff clerk then assigned a hearing for 27 June 2014 in respect of the motion, which decision I endorsed by signing an interlocutor assigning that hearing. My interlocutor of 27 June 2014 sets out in detail the procedure I adopted in respect of this motion at the hearing on that date. There were other matters relevant to the operation of residence and contact I also decided on the same day, but, importantly, no application by Ms F to recall the contact order. But I had two separate proofs that day: one in relation to the section 11 applications, where I based my decisions on section 11 and the paramount consideration of what I thought to be in accordance with the children’s welfare; and, secondly, in this proof, where I took a different approach. First, in making findings in fact, I was not primarily deciding what was in the children’s best interests; I was deciding, according to the law, if Ms F was in contempt of court. Secondly, since the children’s interests are not the paramount consideration in punishing Ms F for her contempt of court, but are a “primary consideration” (UN Convention on the Rights of the Child 1989, article 3; M v S 2011 SLT 918; cf.Gorrie v PF, Haddington [2014] HCJAC 10), I have had regard to those interests as a primary but not the paramount consideration in punishing her for her contempt of court. In the circumstances of this case, the paramount consideration is that the rule of law be upheld. Such a task is never a pleasant one.
• [2]The essential elements of contempt of court are; first, that the alleged contemnor knew of the order she is alleged to be breaking; second, she has not in fact complied with the order; third, her non-compliance was wilful; and fourth, it was without reasonable excuse (I have largely followed my understanding of the procedure as set out in Summary Applications and Suspensions, chapters 7 and 8). Where contempt of court is not admitted, proof is necessary and the onus lies on the party alleging the contempt (Mr H) to prove it and to do so beyond reasonable doubt. Although the case law usually refers to a party being “sentenced” for contempt of court, and that is useful shorthand for the process involved, this seems to me not strictly speaking to be the case. Section 307(1) of the Criminal Procedure (Scotland) Act 1995 makes it clear that “sentence” does not include an order for committal to prison for contempt of court. By virtue of section 15(2) of the Contempt of Court Act 1981, the sheriff court’s maximum powers of punishment are three months’ imprisonment, a fine of £2,500 or both. My reading of section 15(3) of the Contempt of Court Act 1981 is the court summarily proceeds with punishment of a contemnor in civil proceedings; a criminal justice social work report only being necessary before imposing punishment by way of committal to prison if the contemnor be under 21 years of age: see Forrest v Wilson 1994 SLT 490 confirming this understanding in the context of a contempt of court in criminal proceedings. A committal to prison for contempt of court, not being a sentence, would also mean, for example, the presumption against short sentences in section 204(3A) of the Criminal Procedure (Scotland) Act 1995 would not apply. In my opinion and practice in these matters I do not consider the court is empowered to impose an alternative criminal sentence such as a Community Payback Order or Restriction of Liberty Order for while in a civil process the court may punish for contempt of court it does not “sentence” therefor. The court also has common law options such as censure, admonishment, and deferral of punishment, with or without caution, with a view to allowing the contemnor to purge her contempt of court. I am also of the opinion any warrant for committal to prison may be suspended by the court on conditions such as the contemnor obtemper the order of court in the future. Although section 15(2) of the Contempt of Court Act 1981 refers to a person being found “guilty” of contempt of court, it seems to me to be preferable to avoid using the word “guilty” in connection with a finding of contempt of court by the court to avoid connotations with criminal sentencing. In my opinion, it suffices to make a “finding” that a person is found in contempt of court[1].

   

• [3]In this case, Ms F admitted under oath knowing about the contact order. Both in her Answers lodged at the proof on 27 June 2014 and in her evidence, she admitted non-compliance with the contact order, though she attempted to give reasons justifying that decision. In her evidence she admitted that since the first contact visit after 19 April 2014 fell due she had been wilfully refusing to comply with the contact order. This was after she had “decided” on 19 April 2014 she would no longer allow Mr H to have contact with the children in terms of the court order. I was therefore satisfied beyond reasonable doubt that these aspects of the contempt of court had been proved by Mr H.

   

• [4]The remaining question was whether this wilful disobedience to the contact order was without reasonable excuse. Although in doing so, the onus of proof was not reversed, I granted Mr H’s motion that Ms F lead in the proof. She raised a number of general points in the course of her evidence as apparent justification for her not obeying the contact order of 18 July 2013. For example, she sought to present herself as a victim of domestic violence and abuse and harassment by Mr H and his family. These are claims that she repeatedly dwells upon at most hearings in these proceedings. In the court ordered child welfare report she stated the opposite to the reporter: “there had been no domestic violence” (page 21). As recorded in my finding in fact number 4 in my first Judgment, the parties struggled physically with each other on 28 November 2011. During that struggle the pursuer hit the defender on the head with her handbag causing him to fall to the ground and injure his face. They separated on that date and are now living apart.I later found their marriage had broken down irretrievably, not by reason of the defender’s behaviour, but upon Ms F amending her divorce crave to irretrievable breakdown of their marriage because of their separation for one year and the defender’s consent to divorce, Ms F having failed to prove the irretrievable breakdown of their marriage by reason of Mr H’s behaviour. I have granted decree of divorce on that basis. I did not find in the divorce proof on the basis of Mr H’s behaviour that Ms F’s claims of incidents of other domestic violence by Mr H were credible. The sheriff principal has refused her appeal on this aspect of the appeal as incompetent. She has not sought reduction of the decree res noviter veniens ad notitiam, if competent, although she claims she has new psychological and other evidence, arising after the divorce proof, establishing her claims to have been a victim of domestic violence. I have no power to revisit my findings of fact so far as this aspect of the case is concerned. Ms F’s claim to be a past victim of domestic violence has been heard by the court. In this instance, certain claims she made about the past have been rejected as factually unsound. She has current criminal complaints against Mr H and these will be given a fair hearing when brought to trial. None of this gives her reasonable excuse to withhold her obedience to the lawful order of the court that the children’s father have contact with them.

   

• [5]One other possible general reason for her refusing to obtemper the court order for contact was the suggestion in own her evidence and her cross-examination of Mr H that he owed child support to the CSA and was avoiding them to avoid diligence. Withholding contact for such reason, even if true, is not a reasonable excuse: Simpson, Boath & Co, Petrs 1981 SC 153.

   

• [6]The background to Ms F’s “decision” to stop contact on 19 April 2014- as she termed it in her evidence- appears to have been associated with her recent holiday to Turkey with the children and Mr H’s suspicion she allowed the children to come into contact with her current partner while on that holiday, though interdicted from doing so. This proof is not the place to consider whether there was or has been any breach of the interdict and I make no finding thereon in this process. Ms F denied breach of interdict and explained she had returned from holiday with the children. She said in her evidence that her older son’s tenth birthday had taken place while on holiday, but the defender had not phoned or sent a text to him. Then on 19 April, when the children were due to be collected for contact by the defender, he ignored a text she sent asking him “not to let the children down” by not arriving for contact. When he did not do so, she went to his house and found he was not in. The children ran down his drive with a postcard they had obtained and written out for him in Turkey, but which they had not posted to him. They “wanted to see their dad”. They were upset when they did not see him as they had not seen him for two weeks. She said they had “behavioural problems” all weekend (the older son is diagnosed with Asperger’s Syndrome, though Mr H disputes this diagnosis). This, a “catalogue of abuse” and an incident on 7 April 2014, to which I shall come to later, were, she said, the reasons for her decision to stop contact, albeit she was aware of the terms of the court order dated 18 July 2013.

   

• [7]Another factor which seemed to weigh in her reasoning for refusing to obtemper the court order was her claim “he owed me 240 hours access”. She appears to keep a record of contact hours she says Mr H hasn’t taken up. It is not clear whether these are in terms of the decree. When this case first came into the court it was an unusual feature of it that she insisted on“joint residence” (see child welfare report, page 23) , but she has also mentioned this many times during court hearings as well, sometimes referring to “shared care”, despite Mr H’s repeated opposition to such an arrangement. Mr H who wishes to maintain contact with the children is a lorry driver and I accept his shift patterns make this unrealistic. It is not necessarily the best of arrangements for children in general and is only ever likely to work if both parents agree to operate such an arrangement (McKechnie v McKechnie 1990 SCLR 153 at 154 C and D, per Sheriff Principal O’Brien). Ms F has previously tried in this litigation either in addition or as an alternative to “shared care” to get Mr H to enter into a “Parenting Agreement”. There is an example of such a proposed agreement in process. It is in rigid terms, seeking to instruct Mr H that he “will” take the children on specified occasions which bear in my opinion no resemblance to the reality of Mr H’s working commitments. They seem to me to reflect a desire for order and certainty in Ms F’s life: “This agreement is proposed to establish a firm and fixed routine for our children who need order, stability and continuity in their lives, and to allow both parents to plan and construct the best possible interactions with our children while they are in our joint care”. She referred in her evidence in her defence of contempt of court to a “full and comprehensive” Parenting Plan she said she had recently sent to Mr H. She also put this to him in cross-examining him. He said he hadn’t had a look at it because he would prefer they would be adult enough to talk on the phone about their children, rather than communicate by email. The court has not accepted the idea of such rigid parenting plans being in the best interests of the children. It is better for them that arrangements are flexible, cordial and relaxed. The court has approved an arrangement giving her residence of the children and Mr H contact with them- one that she agreed to: it is the residence and contact arrangement approved by the court in its interlocutor of 18 July 2013. It has not endorsed a parenting plan in its interlocutor. Ms F has no basis or legal entitlement to force Mr H to enter into such an agreement if he does not want to. He does not want to, with sensible reasons for taking that position, and this does not afford Ms F any entitlement to impose conditions upon the operation of the contact order, or afford her reasonable excuse to disobey it at her will.

   

• [8]Mr H’s position about the holiday is Ms F had arranged this with his knowledge and tacit consent. He explained he had taken time off from work and himself gone on holiday to Fort William. Ms F decided she would herself go on holiday at this time. Not to waste his own holiday, he decided to go on a break himself. He gave the parties’ oldest son a note on 7 April 2014 informing Ms F he would not be able to collect the children on 19 April 2014. Ms F did not appear to challenge Mr H’s evidence on this point when she cross-examined him. In her cross-examination by Mr H’s solicitor, she denied the existence of the note. She said this was “not true”. She then conceded her son had “muttered something”. She said it was not clear what he had said to her. She did not know “100%” if their father was picking them up on 19 April 2014. She then changed that to: “he (presumably Mr H) didn’t communicate with me” and explained she had stopped contact because “Police Scotland had advised it” (more on this later in this Note). She did not challenge the suggestion put to her that she had informed Mr H of her decision to go abroad on holiday with the children. Sadly, Ms F’s evidence on this point was inconsistent and evasive. I am satisfied beyond reasonable doubt Mr H gave her the note via her son. She knew perfectly well about such communication because she acknowledged her son “muttered something”. Her complaint seems to be this did not give her 100% “certainty”. The fact she sent a text to Mr H on 19 April 2014 shows she was aware there was unlikely to be contact that day. Regrettably I cannot accept Ms F’s account of these events. But assume her child “muttered something” and she was not “100%” sure. I think the reasonable parent would have taken steps to find out for sure, especially as this was a holiday period and it might reasonably be in contemplation contact plans might change consequent of her decision to take a foreign holiday. And assume communication failed, it is hardly a reason to stop all contact thereafter. It seems to me the real problem for Ms F stems from her compelling need to have rigid order in her life. This was not a decision made with the best interests of the children in mind, especially since on the basis of her evidence the children had wanted to see their father after their holiday. The children’s postcard to their father is at 6/29 of process and in my opinion it confirms this is so, and also the children’ affection for their father.

   

• [9]It’s not clear to me what Ms F meant by a “catalogue of abuse” when she referred to this in her evidence. She referred to Mr H’s sister allegedly breaching the peace on 19 April 2014. She admitted she herself (Ms F) was facing a criminal charge of breach of the peace involving Mr H’s brother and reminiscent of an earlier conviction of hers recorded at finding in fact 12 of my first Judgment when I admonished her for an incident of careless driving involving her chasing Mr H through the local town in her car. She claimed that Mr H came to her door on 7 April 2014 and “barged onto her door step”. The children were said to have been fearful and she said this was “nothing new”. Since failing in her divorce action to prove his behaviour towards her had been unreasonable prior to separation and the interim interdict against Mr H was recalled: “He had power and felt the court was on his side”. She did not elaborate much on this when she was cross-examined by Mr H’s solicitor. She said in this context that Mr H’s solicitor was to: “Tell Mr H to behave himself. It’s my only choice to make him behave”. (I believe I have noted “choice” -rather than “chance”- correctly. I believe Ms F was explaining a further reason she stopped contact at this juncture in her evidence). She said Police Scotland and the nurse at Ward 15 of the local hospital had advised her to stop contact. She had read a report on the Scotland’s Commissioner for Children and Young People’s website which said that in some cases it was not in a child’s best interests to have contact with their father. She wanted the court to “stop contact” to investigate “indoctrination”. The social work department had failed to look into that when it had earlier considered child protection issues. She had “been afraid to argue” with them when they thought contact with their father was in the children’s best interests. Police Scotland was compiling an investigation into Mr H’s stalking behaviour in breach of “section 39”. She said she couldn’t afford interdict proceedings. While it appears Mr H has recently been charged by the police with breaching section 38 of the 2010 Act, he denied these allegations in this proof and is due to stand trial in this matter later in the year.

   

• [10]I found Ms F’s evidence on what was supposed to have happened on 7 April 2014 vague and unclear. These complaints do not however amount to reasonable excuse for not obtempering the contact order. Her proper course of action was to ask the court to review the contact arrangements; during which review the court could consider whether any conditions could be put in place to address Ms F’ alleged security concerns. As yet her current allegations against Mr H and his sister are unproven. The court is unaware if she told Police Scotland and the nurse of Ward 15 if she was obliged to give contact in terms of a court order. It is hardly credible such persons, if they had given her any such advice, would tell her to disobey a court order. This leads me to doubt her credibility on these points. Had this been the reason for refusing contact, it is contradicted by her decision to take the children to visit their father on 19 April 2014.

   

• [11]In addition to the foregoing points, Ms F made much of two historical incidents. One involved Mr H arranging dental treatment involving extraction of teeth for their youngest son. She presented this in her evidence as the dentist “holding down her son” and “ripping his teeth from his mouth” without his mother being present. She was shocked when he came home with blood on his T-Shirt. She described this as “child abuse”. Mr H explained he arranged for this treatment after noticing a malodorous smell from his son’s mouth. The treatment was carried out by a professional dentist at an NHS registered practice. While this might have been a decision best left to the parent with residence and a discourteous decision on Mr H’s part in proceeding with this treatment without prior discussion with Ms F, he has parental rights and can legally make such a decision on his own. And, from the perspective of the child’s best interests, it does seem a justified decision. It hardly amounts to “child abuse”. Ms F’s anger is understandable but does not amount to reasonable cause to disobey the contact order. The second incident also involved the parties’ youngest son. He has a problem with his vision. It has to be corrected before he is 8. He wears an eye patch. He went into hospital for five days for an intensive period of wearing the patch and hospital supervision. His parents were to take turns with him. Mr H on the first day of this arrangement decided his son was in good hands and left for an appointment with his solicitor, having discussed and agreed this with the nurse on Ward 12. He returned to hospital as soon as he could upon being informed his son was asking for him. This angered Ms F. She took their son out of hospital but returned him the next day. There were no problems during the rest of that week. She was angry this broke a “Parenting arrangement” for their son while in hospital and because he had an “attachment disorder”. Mr H agreed their son had difficulties being left alone. I found this incident to be utterly bizarre. It again illustrates Ms F’s need for control and order. Mr H was legally entitled to make the decision he did. It was based on his needs in part, but he had the agreement of the hospital to leave the child. I don’t think it at all reasonable or necessary the child was looked after “24/7” by his parents in turn according to a rigid plan of Ms F’s devising. I had no evidence to confirm the child had an “attachment disorder”; it might not be a bad idea, in his interests, in developing confidence and independence to give him time alone in the hands of professional and caring hospital staff. It appears from Ms F’s evidence she made a fuss at the hospital over this incident. It is not a reasonable excuse for her to disobey the contact order.

   

• [12]She also complained Mr H has “shaved” off the children’s hair in the past. In fact Mr H has, as he said in his evidence, employed a professional barber to cut their hair short. This has been a recurring complaint made by Ms F at hearings in the course of these proceedings. She has in the past showed me photographs of the two boys with long hair. She has accused Mr H of accusing her of having gender issues and having preferred the children to have been girls. This is another example of Ms F not focussing on relevant legal issues, turning things around so they are about her and not the children. There have been plenty of hearings in the case in which she could have applied for a specific issue order about haircuts. The court would then have decided what it thought to be in the boys’ best interests- long or short hair having regard to its reasonable beliefs about what was best for children in contemporary society, without any need to worry if she had “gender issues”. It is not reasonable excuse for disobeying the contact order.

   

• [13]Ms F has substantial capital assets but her income appears to be limited. She is generally disqualified from getting legal aid for civil proceedings because of her capital. She talked about the “judicial” and “legal aid” system “abusing” her because she could not afford a lawyer and Mr H who got legal aid for the divorce proceedings could. She had not put in any motion to the court to address her security concerns surrounding contact arising from the alleged incident on 7 April 2014, (and presumably for a specific issue order to prevent dental treatment or haircuts of the children by Mr H without her consent) because she said she could not afford it. But when she could afford to do so, she would put in a motion “to restrict this man’s parental rights”. When she had been asked by Mr H’s solicitor to re-instate contact after 23 April 2014, she had thought: “You pay for the motion. I cannot afford it”. She went on to make it clear in her evidence, that by refusing to re-instate contact, she thought she would then be able to bring all of her concerns to the court without having to pay the court fee for a motion of her own or the sheriff officer’s fee for serving it on Mr H. Thus despite having putting in previous motions to the court and conceding she was “aware of the process”, she disobeyed the contact order, in part, to allow her to vent all of the foregoing grievances before the court. Not only do I consider that to be an abuse of process on her part, for none of these issues, with the remote possible exception of the alleged incident on 7 April 2014, had any bearing on the issue of ongoing contact, it was a decision, based on her needs and desires, not on the best interests of the children. All in order to save herself about £150 she would refuse all contact between the children and their father despite knowing they had “wanted to see him” after returning from holiday. The sheriff principal expressed the view Ms F cannot afford motions. That opinion was in the context of me refusing inter alia her minute number 20 of process to recall the interdict prohibiting her from allowing her partner having contact with the children as being functus officio on granting decree of divorce. I would have required Ms F to put in a new minute post-divorce under the relevant rule of court - OCR 1993, rule 33.44(1). So in view of the sheriff principal’s decision on this point it makes sense not to require her to put in more documents than is reasonable, having regard to what she can afford.But the court cannot exempt her from the rule of law. It can per the sheriff principal’s example try to arrange hearings in a way that might alleviate unnecessary costs to her. But her plain duty if she was of the opinion the contact order should be brought under review was promptly to apply to the court for its review. She did not appeal the making of the contact order to the sheriff principal so this was a matter for review, not appeal. The question of her not being able to afford the motion fee and service fee to review of the contact order is not in my opinion reasonable excuse for her disobeying it.

   

• [14]Ms F also said in her evidence in her defence in relation to contempt of court the children had been disturbed after contact visits and had been coached to say they hated her current partner and she was a “bitch”. It was not clear to me if these were current allegations. They are reminiscent of allegations she made when contact arrangements were much more fraught and which pre-date the contact order of 18 July 2013. In any event Mr H denied these allegations. It was difficult to believe these allegations. They lacked specification as to date, time and place. They are not things she has recently claimed in hearings before the court. They are contrary to her evidence she wanted the children to have contact on 19 April 2014 and they had wanted to see their father.

   

• [15]When in an earlier stage of the history of this case the court appointed a welfare reporter to look into the children’s allegations that Ms F’s current partner had been hitting them, Ms F attempted by way of motion, which I refused, to have the reporter’s appointment recalled. She has since accused the reporter of bias and unprofessional conduct. She has criticised him for making comments critical of her, by essentially focussing on that relationship over the needs of the children. She took a complaint, ruled inadmissible, to his professional body and now to the sheriff principal. She has never ceased in these proceedings to attack the reporter. It has been a priority of hers in proceedings before the court to “clear our name”. Once again she complained about this in this proof. Ms F is generally speaking a good mum. But his case is not about her being a bad mum and needing to “clear” her name. Yet she persists in turning it into precisely that. One of the related section 11 applications before me on 27 June 2014 was her application that the court recalled the interdict preventing her partner having contact with the children. I had occasion to issue my Judgment refusing that application in hoc statu because she refused to comply with the court’s request this individual be brought to court on 2 July 2014 to give evidence to the court on his current circumstances, particularly in relation to matters such as his drinking, his recent drink driving conviction, and his apology to the reporter for issuing threats to him while under the influence of alcohol and anti-depressants. But also because she has made it plain to the court she will continue to disobey the contact order. The court would find it very difficult to get to the bottom of any current allegations by Ms F that might require the children being asked their views, when she was and remains hostile to the welfare reporter previously appointed to act in the children’s best interests. It would be wary of appointing a further reporter who might meet with the same hostility if his or her conclusions were not in line with Ms F’s allegations.

   

• [16]I have set out in this Note Ms F’s main concerns about contact as stated in her evidence and her Answers lodged on 27 June 2014. There was nothing else that struck me in her evidence or Answers that gave me reason to think she had reasonable excuse for disobeying the contact order. Random complaints such that Mr H didn’t take the children on holiday did not alter my view on that matter. Her protestations made throughout this litigation and repeated by her in this proof that Mr H was “without a doubt” using these proceedings as a method of “controlling her”, “that everything he did was to control” her, that he had nearly achieved his ambition as stated by him to her at separation (she claimed) to “destroy her financially and professionally”, “was constantly downing me as a mother”, “was abusing his children” and that he “spent a lot of his time on his agenda calculating what to do to me next”, were described by Mr H in his evidence as “wild and crazy allegations” and part of her “conspiracy theory”. Rather than him controlling her, he felt she was trying to “dictate and manipulate me for her own benefit”, such as in regard to proposed parenting agreements. While I do not necessarily go as far as Mr H in his suggestions about Ms F, it does strike me that her real difficulty in this case is to do with issues of control. She strikes me as a very controlling individual; she comes across to me as being very distressed about the loss of control she feels she has over making decisions about the children, such as her inability to make Mr H agree to “Parenting Agreements” and “Parenting Arrangements” and to get the court to agree with everything she says and thinks should be done in terms of court orders to the point of constantly repeating old ground at court hearings, even if not legally relevant to the issue under consideration, and seeking to attempt to have the court review its findings of fact already made. Ms F seems to me to have real difficulty in understanding how the court process works, or in accommodating opinions other than her own. As Skene noted in the preface to his De Verborum Significatione: “ilka man hes his awin judgement and opinion, quhairof there is as mony contrarities as diversities of persons”. As I pointed out to Ms F at the conclusion of the hearing finding her in contempt of court, the court is entrusted by law, where there is diversity of opinion between parents as to what is best for their children, with deciding the issue. Section 11 refers to the court making such order as it “thinks fit”. It is not an arbitrary power. It is arrived at after hearing and evaluating evidence and giving both sides a chance to address the court. The court is impartial and makes such decision as it thinks best for the children, taking into account its reasonable beliefs about what is best for children generally. The court’s decision is subject to review on appeal. But when the court has spoken in its interlocutors that is, subject to appeal, recall or variation of the order by the court, so to speak the final word. Dialogue is over so long as the order remains in force. In a civilised society based on the rule of law all citizens without exception are expected to obey the rule of law, including contact orders. That includes Ms F, though she appears to think otherwise.

   

• [17]I made a finding of contempt of court by Ms F after hearing the evidence and submissions in the proof on 27 June 2014.I was satisfied beyond reasonable doubt Mr H had proved Ms F’s contempt of court, there being no reasonable excuse for Ms F’s disobedience of the contact order. As will have been noted from the foregoing paragraphs, there seemed to be very little if anything rooted in a change of circumstances relating to the best interests of the children to justify Ms F’s decision to disobey the contact order. I agreed with Mr H’s solicitor, that to the extent Ms F deigned to refer to such issues, for example the alleged incident on 7 April 2014, that these were not the sort of emergency situations rooted in the welfare of the children, such as, for example, the contact parent turning up drunk for contact, that afforded to Ms F reasonable excuse for disobeying the contact order. Rather her duty had been to obey the order and seek its recall or variation if justified by the best interests of the children.

   

• [18]I briefly explained to Ms F at the conclusion of the hearing on contempt of court on 27 June 2014 why I had found her to be in contempt of court. Her immediate response to that finding was simply to say in open court she would not obey the contact order. I considered she had had ample opportunity to air her grievances during the hearing. They had however been found wanting so far as they amounted to reasonable excuse to disobey the contact order.

   

• [19]Throughout the proceedings in this case, Ms F has said to me she cannot afford a lawyer and must therefore represent herself. I was willing to take those concerns of hers on board at the stage proceedings had reached on 27 June 2014. As I understood the law, if the court proceeded to impose punishment for contempt of court, being sui generis in nature and sharing features with criminal contempt of court cases, review of that decision lay only with the Court of Session, contemporary practice in relation to contempt of court for disobeying section 11 orders brought to the court’s attention in a pending process (usually by minute, but here by motion) being to petition the nobile officium of the Court of Session for suspension of the warrant for committal to prison (Forbes v Forbes 1993 SCLR 348 ; doubted but not overruled in McIver v McIver 1996 SLT 733; M v S 2011 SLT 918 and G v B 2011 SLT 1253)^[2] or for suspension and interdict/ liberation^[3]. As she was a party litigant, I explained this basic point to Ms F on 27 June 2014. This was in order to prevent her placing herself in a position where any review of my warrant might have to be to the Court of Session. For that reason and also to allow her an opportunity of reconsidering and repenting of her position that she would not obtemper the contact order, I accordingly gave her a few days to rethink her position and to get a lawyer to represent her at court. I thought it was in her interests she urgently took and acted upon legal advice in relation to her contempt of court and its possible implications for her. She had been giving limited instructions to a local family solicitor for advice on court procedures so I reckoned she had quick and easy access to legal advice.

   

• [20]Her response wasn’t to get her lawyer to represent her in court at the hearing on 2 July 2014 when I was due to consider imposing punishment upon her for her contempt of court, but to go to her doctor the day before that hearing. The sheriff clerk depute informed me on 1 July 2014 Ms F had appeared in person at the sheriff clerk’s office that afternoon to hand in a letter from her GP stating she could not attend court at the punishment hearing. That letter was brought to my attention and I considered whether it would justify adjourning the punishment hearing or granting a warrant for her apprehension. The GP’s letter was written on soul and conscience by her GP and referred to Ms F’s appearance at court as relating to “a civil matter arising from the break- up of her marriage”. It was requested in the letter that the case be adjourned “on medical grounds”. It stated Ms F “is struggling psychologically at present and is feeling very anxious”. Her GP opined that he/she “has no doubt that” Ms F “wishes to see the matter through to its conclusion and I would hope that the Court would look at this request sympathetically and grant an adjournment, if only for a few weeks”.

   

• [21]The issue of adjourning proceedings when an unrepresented party produces a medical certificate seeking excusal from attendance at court was considered by the Second Division in Scottish Ministers v Claire Smith [2010] CSIH 44.

   

• [22]The relevant paragraph of its Opinion was:

   

  “[7] A medical certificate to the effect that a person is unfit to attend court is not conclusive evidence of that fact. In every case it is for the court to decide, from the certificate and any other relevant circumstances, whether it is persuaded that the person concerned is unfit to attend and, if so, what the consequences of that should be”.

   

• [23]Had it come to it, and although Dr S’s certificate in this case was on soul and conscience, I would have considered it was not apparent from his/her letter Ms F has informed him/her that, after a proof on 27 June 2014, she was found to be in contempt of court and had been ordained to attend court to answer for that contempt of court. The letter refers only to “a civil matter arising from the break- up of her marriage”. It does not elaborate on why Ms F “is struggling psychologically at present” and “feeling very anxious”. In particular it does not relate that anxiety to Ms F’s statement in court on 27 June 2014, after I made my finding she was in contempt of court, she would not obtemper the contact order. I had no idea what the GP meant in his /her letter by Ms F “wishing to see the matter through to its conclusion”; or whether the GP was aware that Ms F refused to obtemper the court order and appeared to indicate to the court that, if it came to it, she would go to prison rather than obtemper the order. If so, I was unclear why that matter should be adjourned as the GP suggested “for a few weeks”. Further, the letter did not explain why her feelings of anxiety and psychological struggling prevented her from attending court. The letter was not conclusive evidence the pursuer was unfit to attend court, even if it was on soul and conscience.I was entitled to take into account all relevant circumstances, including her public statement in open court of her intention to continue defying the contact order. Dr S’s letter gave no indication that he/she was fully appraised by Ms F of the nature of the court hearing. Ms F “decided” to disobey the court order on 19 April 2014 and since 23 April 2014 Mr H has been denied contact with the children. Adjourning this matter for “a few weeks” was unlikely to be acceptable in those circumstances; Ms F might only then seek a further adjournment of a “few weeks” in which she could continue to defy the contact order and continue to deny the children contact with their father. I noted also the lack of any written undertaking by Ms F, accompanying her GP’s letter, that if the hearing were adjourned for a “few weeks” she would meantime obtemper the court order. I would therefore unlikely to have been persuaded by the medical certificate that Ms F was unfit to attend court. As Scottish Ministers v Claire Smith makes clear I was not only to consider whether she was unfit to attend court, but what the consequences of that non-attendance should be. In those circumstances, I considered it likely I would issue a warrant for her apprehension as a person cannot be punished for contempt of court in her absence from court. She has the right to make a plea in mitigation of punishment either in person or through her solicitor or counsel. She must therefore be at court for that purpose.

   

• [24]In the event Ms F turned up slightly late at court on 2 July 2014, explaining she thought I would have issued a warrant for her apprehension if she did not. Seeking to rely on her GP’s letter, she claimed she was not well enough to conduct the punishment hearing or the continued section 11 hearing in relation to recall of the interdict against her partner having contact with the children. She said she had come to “halt” the proceedings and had told her partner, despite the Court’s request to Ms F that he do so, not to attend court to give evidence that day.

   

• [25]It appears that prior to coming to court on 2 July 2014, Ms F had just received my Note No. 10 explaining the reasons for my decision on 27 June 2014 to refuse her application to interdict Mr H’s partner from having contact with the children. She explained that, notwithstanding the contact order, and although she had been refused her section 11 application to interdict Mr H’s partner, who had in the past had bipolar disorder, from having contact with the children without similarly requiring Mr H’s partner attendance at court, she, Ms F, would not obey the contact order until she was satisfied this partner was no risk to the children and was “well”.

   

• [26]In respect of that application, after hearing evidence and submissions on 27 June 2014, I decided inter alia Ms F had not proved Mr H’s partner was likely to harm the children. Ms F was concerned this partner would do something in the nature of drive to Newcastle-upon-Tyne on a day trip with the children and drive into the river Tyne to kill herself and them (based on a real incident reported in the Herald some years ago involving different parties). Ms F made it abundantly plain to the court on 2 July 2014 that here would be no contact between the children and their father, notwithstanding the contact order, unless she, Ms F, was satisfied Ms H’s partner was not any risk to the children, notwithstanding the court having judicially ruled against her, after proof on this question.
• [27]I was of the view Ms F was well enough to be at court on 2 July 2014. She was making submissions about matters she could properly seek to appeal to the sheriff principal. When I refused her motion to adjourn proceedings for “several weeks”, she then insisted her partner be brought to court to give evidence after all. Having already ruled against the adjournment I was not prepared to reconsider my decision about refusing the adjournment or let Ms F dictate the proceedings to the court. The section 11 proceedings, upon which I made avizandum, have now been sisted by me and adjourned until September until Ms F demonstrates compliance with the contact order and to hear evidence from her partner. I considered this evidence not only germane but essential to resolving the issue of recalling the interdict against Ms F’s partner being allowed contact with the children, not in Ms F’s interests, but in the paramount best interests of the children.

   

• [28]Having refused Ms F’s motion to adjourn either the continued section 11 proceedings or the punishment hearing in respect of her contempt of court, I asked Ms F if she intended to obey the contact order. She said she would not. I then informed Ms F I would proceed to impose punishment for the contempt of court. I was however willing to give her one week to consult a solicitor and apply to court for legal aid for contempt of court under section 30 of the Legal Aid (Scotland) Act 1986 if appropriate. She said she was taking the children on holiday that week and that would deprive them of a holiday and not be in their best interests. As I said at the outset of this Note, in these proceedings the children’s interests are a primary but not paramount consideration. While it would be to their benefit to have a holiday, Ms F had now made it clear to the court on three occasions she will not obtemper the contact order: (1) on 27 June 2014 after I found her in contempt of court; (2) on 2 July 2014 when she appeared at court to move for an adjournment, informed the court she had considered my Note giving reasons for refusing her section 11 application to interdict Mr H’s partner from having contact with the children and, despite that ruling, she would allow Mr H no contact with the children until she was satisfied Mr H’s partner was “well” and presented “no risk to the children”: and (3)on 2 July when, before proceeding to consider her punishment for her contempt of court, I asked her if she were willing to obtemper the contact order and she said no. In considering her further request to adjourn beyond one week, I considered the nature, seriousness and result of her contemptuous conduct, which had been to deprive the children of contact with their father since 23 April 2014. In those circumstances I was not prepared to indulge her any further in her contemptuous behaviour. She then indicated she would continue with her holiday plans and invited me to proceed to punish her for her contempt of court. She pleaded in mitigation she had no money to afford a fine. She made no attempt to address the impact of her possible imprisonment on the children.

   

• [29]In deciding on the appropriate disposal for Ms F’s contempt of court, I considered that while a social work report was not necessary (as discussed earlier in this Note) whether nonetheless to order one. Such a report might assist with further background information about Ms F and assist with any information on whether the court should order a psychiatric assessment of Ms F in terms of section 15 of the 1981 Act. Such report would not in my view assist with recommendations as to punishment, that being for the court, or alternative “sentences”, this not as previously noted being a criminal “sentencing” exercise. A Background report would however be a means of obtaining a “child impact statement”: Cf Gorrie v PF, Haddington [2014] HCJAC 10. I had regard to the comments of the Court of Session in M v S 2011 SLT 918 at paragraph [45] that in a case of this kind there is the special consideration that imprisonment separates the children from the primary carer. That consideration is relevant; but not paramount. The court must uphold the rule of law and protect the interests of the innocent party.

   

• [30]In view of Ms F thrice stating to the court after I had found her to be in contempt of court that she would not obey the court order (as previously explained in this Note), her impenitence for her previous contempt of court arising from her “decision” of 19 April 2014 to stop contact, and the consequences of that decision in continuing to deny the children contact with their father, I was of the view imprisonment would be the appropriate punishment to be considered by the court. In my view as there would only be a short period of imprisonment, the impact on the children would be minimal; no more than if she and they were separated if she went away on business or relatives took them on holiday (Cf Gorrie v PF, Haddington [2014] HCJAC 10 at [21]). Even as a civil prisoner, I understand Ms F would in fact serve 2 of her 4 weeks punishment: Prisoners and Criminal Proceedings (Scotland) Act 1993, sections 1(1), 5(1) (b) and 5(2) (a). There was no presumption against a “short sentence” as previously discussed in this Note. In these circumstances, I considered I had enough information about Ms F’s background from my involvement in hearing evidence and submissions in a variety of contexts from her over a substantial number of days during the whole course of the proceedings in this case. I did not seriously think she had a mental disorder requiring hospital admission rather than imprisonment; accordingly I did not think a psychiatric report would be needed. I did not therefore consider it necessary for any of these reasons to order a Background report prior to imposing punishment.

   

• [31]In considering the appropriateness of granting warrant for her imprisonment, and although all are equally bound by the rule of law in obeying court orders, I took into account as an aggravating factor Ms F had a certain standing in society many others appearing in this court do not and her decision to disobey court orders was particularly reprehensible by someone in her position; she should be setting an example to others of obedience to court orders, not defying them. Also in aggravation, I considered her contempt of court was serious and outrageous and I noted she currently had no intention of obeying the contact order. In mitigation, I took into account there was to my knowledge no previous finding of contempt of court against her and she had no significant criminal record. She had professional qualifications and had been a successful businesswoman. In the circumstances I granted warrant for her imprisonment for four weeks. This was on the basis that, if sent to prison, this might impress upon her the gravity of her attitude towards obedience to the contact order. It would give her time to reflect upon her position. It would be her first committal to prison for her contempt of court. But it would not remove her obligation to obtemper the contact order. Any further committal to prison for contempt of court would probably be of greater duration, possibly after obtaining a child impact statement from the social work department. A short period of committal at this stage would be of minimal impact on the children in terms of the time they are separated from their mother. While such a period would be justified in an attempt to uphold the rule of law, and while I am of course bound to apply my powers in section 15 of the 1981 Act, they seem inadequate to me in a case of this sort. The court would therefore give consideration in relation to any future contempt of court to remitting these proceedings ex proprio motu to the Court of Session under section 37(2A) of the Sheriff Courts (Scotland) Act 1971 as that Court has greater powers in relation to contempt of court. Instead of the three months’ maximum available to this court, the Court of Session has power to order committal to prison for up to two years in terms of section 15 of the 1981 Act. Out of fairness to Ms F she should be aware that while contempt of court can be brought to the court’s attention by motion or minute by Mr H, it is also open to the court to take notice of any contempt of court by her during court hearings as any contempt of court in the presence of the court may be considered by it on its own initiative. I consider that Ms F’s statement to the court on 2 July 2014 when she appeared at court to move for an adjournment, and informed the court she had considered my Note giving reasons for refusing her section 11 application to interdict Mr H’s partner from having contact with the children and, despite that ruling, she would allow Mr H no contact with the children despite her knowledge of the terms of the contact order and my refusal of that interdict after a proof, until she was satisfied Mr H’s partner was “well” and presented “no risk to the children” was such a contempt of court. She was of course entitled to state she would appeal that ruling and she is free to do so. But an appeal does not in itself excuse obedience to that ruling, or the contact order, during the appeal: OCR 1993, rule 31.9.I have not taken any action in respect of this additional contempt of court however as I consider the court should initially at least take a restrained response to Ms F’s contemptuous attitude towards its orders. If she does not respond to a short period in prison, the court will have no alternative, in the face on ongoing contempt, but to consider greater punishment options.

   

• [32]I have however on this occasion made an order suspending the warrant for Ms F’s committal to prison for an initial period of three weeks. This is to allow the children their holiday with Ms F and to give Ms F one final chance of taking legal advice and reconsidering her decision not to purge her contempt of court by allowing contact on her return from holiday. This is therefore intended as a “cooling off” period for Ms F. Thereafter the warrant for committal to prison is suspended on condition she permits Mr H contact to the children in terms of the court order on the first occasion arising after that three week period and on each occasion thereafter. Failing that Mr H is immediately authorised to instruct officers of court to put the warrant into execution without further recourse to this court. I authorised immediate extract of the warrant to allow Mr H’s solicitor to put the necessary arrangements in place for Ms F’s imprisonment if she continues to disobey the court order.
• [33]As to the judicial expenses occasioned by this contempt of court procedure since its remit to me by the sheriff principal, Ms F said she couldn’t afford to pay these. My view on that question may be affected by whether she has obeyed the court order prior to a hearing on expenses later this year. I have therefore reserved these expenses until that hearing. This is not to be construed as a promise to Ms F that there will be no finding of expenses against her. There may well be a full finding of expenses. There may be some other disposal in relation to expenses. I will consider what I consider the just disposal in relation to expenses at the hearing on expenses after hearing further submissions from the parties. I have meantime appointed the cause to the Diet Roll of 11 September 2014. That’s not the date for hearing parties on expenses. The case will call in court merely for the purpose of fixing the diet on a date subsequent to 11 September 2014. This means that between now and 11 September 2014 the parties have ample opportunity to liaise with the sheriff clerk over the date for the hearing on expenses.