Last week, my colleague Shona Young considered parental alienation in the second part of our review of the Consultation on reforming Scottish Child Law. The natural follow-on is perhaps that of non-compliance with orders made by the Court which grant a parent contact with their child, where the child is not living with them and contact has been in dispute (“contact orders”).
At the moment, if someone who has a contact order in their favour believes there to have been a breach of that order, their remedies are either to seek a variation of the contact order (for example, to “tighten up” some of the practical arrangements) or to seek to have the person breaching the contact order held in contempt of Court.
For cases in the Sheriff Court (where most contact cases are heard) the maximum penalty for contempt of Court is three months imprisonment or a fine of level 4 on the scale. In the Court of Session, the maximum penalty is two years’ imprisonment or an unlimited fine.
It is difficult to know the extent to which the Courts are in fact dealing with non-compliance with contact orders, but certainly in my career I have seen this situation arise on numerous occasions.
When the Family Law (Scotland) Act 2006 was being drafted, thought was given to putting a warning with the order of the consequences of failing to comply with any contact order. Ultimately, this was amended out before it became law as it was thought unduly intimidating to parents who had not, as yet, done anything wrong. I think this is a difficult question, because in terms of non-compliance with contact orders, there are very much extremes.
At one end of the scale are the parents who intentionally and repeatedly fail to adhere to the terms of contact orders. Individuals who are engaging in that type of behaviour should be well warned that those actions might have consequences. Equally however, one can see that a parent should not be reading such a notice and be fearful that they might find themselves in contempt of Court if, for example, they returned a child a few minutes late from the time provided in the order. However, one would have thought that an appropriate wording for a “warning” could be found.
In terms of the options outlined by the Consultation paper on how non-compliance with contact orders might be improved, three principal options are considered, although it is acknowledged that a combination of options might be appropriate.
The first option is for there to be no change to the current position. There is an argument that imprisonment, whilst a last resort, should remain open to the Courts as a possibility. The argument against imprisonment is that it may not be in the child’s best interests for the parent with care to find themselves separated from that child for months at a time, and of course, the Court must have at the forefront of its mind the best interests of a child in the first instance. One can see therefore why there are reservations about imprisonment.
The second option considered is the possibility of alternative sanctions to imprisonment. Alternative sanctions which are being considered include undertaking unpaid work, attending a parenting class or ordering compensation where financial loss was incurred as a result of contact taking place (for example, the parent who flies to Scotland from London for contact which does not then go ahead). It is suggested that these alternative sanctions would give the Court more flexibility and offer more child friendly options. In most cases, I would expect that a parenting class would not be something which would be thought to be a sufficiently negative consequence to deter from breaching a contact order. Unpaid work for a busy executive however, or a financial consequence for an individual who wasn’t financially well off, both could be effective in many cases. It would seem logical however that the Court should be left with the flexibility to choose what orders it can make from a range available that would hit a particular parent most hard.
The third option considered is to make contempt a criminal offence, and thus to take it outwith the ambit of the civil Courts altogether. The consequence of this would be that the parent in contempt of Court would be dealt with in the criminal system, and would find themselves with a criminal record – no doubt a significant deterrent indeed. However, if this was an option to be considered, there would clearly require to be clear communication within the civil proceedings of the possible criminal consequences.
It is once again a problem in respect of which there are no easy answers. I am drawn to the idea of more imaginative and varied consequences, but not all of those proposed would necessarily be effective in every case. As such, perhaps imprisonment remaining an option in the most serious of cases where little else would be a deterrent should be part of a wider package of options. We are not talking here about a situation where someone brings a child back fifteen minutes late on a few occasions – we are talking here about the parent who repeatedly, and often maliciously, refuses to allow contact to take place on dates and times which have been ordered by the Court. However the law now does move forward, there is no question that a parent who is deliberately and consistently failing to adhere to orders of the Court which have been made with the best interests of a child in mind, should, and must, face appropriate consequences.
The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.