Dealing with Contempt

We are interested in the reporting of the Glasgow Sheriff Court judgment [Foxtrot v Echo [2026] SCGLW 76]  last week which found a mother in contempt of court for failing to comply with court ordered contact time between their child, a 12 year old daughter, and her father.

The mother has been imprisoned as a civil prisoner for a period of 7 days.

We know of other cases in which a parent, usually the mother, has been so sentenced for contempt of court but rapidly released on appeal. We await developments in that respect.

Failure to obtemper/contempt of court comes up very frequently in our casework. It is a major source of frustration for many separated parents that courts seem reluctant to use the powers of punishment available to them. We hear repeatedly, “It cost me thousands to get a court order for contact and it turned out to be not worth the paper it’s written on.”

Sheriff Reid’s judgment may be an outlier in two respects. First, it is unusual in being published at all. The vast majority of contact/residence cases are heard in Scotland’s sheriff courts. Thousands of important decisions are taken that affect the future of children, parents and wider families but precious few judgments are published.

We raised this as an intelligence deficit with the previous Lord President, Lord Carloway, who agreed that more published judgments would help family law solicitors and parents get a fix on the factors that sheriffs see as significant and relevant to their decisions. He could only encourage, not instruct.

Secondly, in its 23 pages, the sheriff set out what he considered the duties in law of the parent to encourage the kind of contact that had been ordered (after due process and set out in an agreed joint minute in this case) and which had worked well until undermined and disrupted by the mother. In particular the sheriff addressed the “child doesn’t want to go” defence and described that bluntly as “hiding behind the child”. The defender (the mother) had failed to take on her obligation as the girl’s parent to foster the agreed contact time.

Sheriff Reid’s excoriation of the parent for hiding behind the child may also be a timely jolt to some shrieval colleagues.

Shared Parenting Scotland made representations about the vexed issue of failure to obtemper during the progress of the Children (Scotland) Act to the statute book in 2020. We proposed that sheriffs should be given more and creative powers to deal with examples brought to their attention. Surprising to some, we did not advocate that more non-complying parents should be imprisoned except in most egregious cases. It is difficult to see, we argued, that a child will warm to a parent “who sent my mummy/daddy to gaol” which is most likely the brief form of words in which the event would be presented to it.

Instead we proposed imagination. For example, the parent in contempt could be ordered to carry out some form of community payback during the hours that contact between the child and other parent is taking place. Or, where practical for both contact parent and child, residence could be reversed for a period. Or suspend a prison sentence for six months or a year to be reviewed if contact has resumed as ordered. Our view was that a sheriff who has seen the parent in person could design a sanction to fit the individual and the circumstances.

Gaol, even as a civil prisoner, is too drastic for most sheriffs to order so they tend to do nothing. Solicitors know that and generally – not always, of course – steer away from pursuing contempt as wasteful of emotional energy.

Of course, we believed if both parents could be ordered to undertake coaching such as our New Ways For Families course they might see a way forward to better collaboration. They would be expected to report back to the sheriff that they had completed the course and explain in person how it changed their attitude. The course doesn’t lecture parents but gives them insight into the damage continuing conflict inflicts on their children.

Unfortunately, the Children (Scotland) Act went in another direction and, when implemented, will bring a child welfare reporter back into the case “to make further enquiries” into the failure to obtemper. We could not and cannot see how that will work without allowing the parent in contempt to reopen the original case.

In Foxtrot v Echo [2026] SCGLW 76,  there had never been a child welfare reporter involved in the first place.

This is one case and one judgment. We will probably never know how much effect it will stir among sheriffs and solicitors in our system that affects so many but lacks transparency.

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