If the kids aren’t there for contact, is it a contempt of court?

One of the recurring questions raised at group meetings is what a non-resident parent can do when he arrives to collect his children for court ordered contact time but is told, “They’re not coming” – though not always expressed so politely.

It can be extremely painful. The father may have been building up to seeing his kids again for weeks and sometimes months during protracted legal proceedings.

It can be extremely frustrating. The explanation given for their non-appearance can be trivial or irrelevant or, most hurtful, “They don’t want you.”

It can also be dangerous. The non-resident parent is very exposed – usually on the doorstep of his ex-partner’s home. We know of many instances where a raised voice there – even in pain or frustration or in response to foul and aggressive language – has led to a weekend in the cells and the threat of domestic abuse prosecution. Even if no prosecution follows or there is no conviction the fact of an arrest is likely to be brought before the sheriff at the next child welfare hearing.
It doesn’t always happen on the doorstep. We have seen the foulest of texts telling the non-resident parent that the contact isn’t happening and “there’s nothing you can do about it”.  We advise not to text straight back.
Police officers say they don’t have any choice in the matter and that failure to produce the kids even where there is a court order is not their business. It can feel unfair and grotesquely discriminatory that one victim of “coercive control” may be handcuffed and taken away in the car that raced up with blue lights flashing while the other victims watch through their bedroom window.
“Surely it’s contempt of court?” we hear. “Why don’t the sheriffs take it seriously instead of ordering yet another child welfare hearing?”
A recent judgment in Dumfries Sheriff Court sets out clearly the legal tests that must applied for a contempt – or “failure to obtemper” – to be proved. 
However, in finding the mother in JDE v SDW guilty of contempt, Sheriff Jamieson also addressed the apparent failures of the social worker and health visitor involved properly to understand the law and the significance of a court order.
He also addresses the obligations in law of the parent with care to “create a climate of opinion in which they [the children] view their father in a reasonable and well-disposed light” and not to leave it to the child to make the decision “without positive guidance and genuine encouragement”.  These duties often seem to come as news both to a parent who views control of contact and the relationship between a child and non-resident parent to be within her discretion and to professionals who see their job as supporting her but who rarely even meet the non-resident parent far less build a relationship with him.
Tests for contempt
Sheriff Jamieson set out the history of the case in which a contact order had been made in August 2011 in respect of a child born in 2006. 
The mother had raised an action to reduce contact to nil but another sheriff rejected it in September 2013 and reaffirmed the original contact order.  However, the child was not produced for the ordered contact on any occasion after August 2013 even though the father drove to the child’s home for each ordered contact. He was advised by text that The child was not going for contact.
The father raised an action for contempt of court and evidence was led on the matter in April 2014.
The sheriff cited the legal tests for contempt of court. “The pursuer [the father] has to prove beyond reasonable doubt:
1) The defender was aware of the court orders;
2) She refused to obtemper them;
3) Her refusal was wilful; and
4) She had no reasonable excuse for doing so.”
The defender [the mother] admitted under oath points 1 – 3. The issue for the sheriff to determine was therefore whether the mother had demonstrated that she had a reasonable excuse.
Sheriff Jamieson made it clear he did not find credible any of the reasons given by the mother.
He criticised her attempts to draw the child into making decisions on whether to attend for contact by inviting him – at the age of 7 – to make conditions based on unsupported allegations she had made about the father. “All of this was highly improper. If J [the child] was ‘distressed’ by anything it is likely to have been by being put into a position too important and beyond his level of maturity to understand.”
Advice by social worker and health visitor
Sheriff Jamieson expressed concern about the advice given in a letter by the social worker to the mother that as she had parental responsibilities and rights to act in her son’s best interests  she was entitled to withhold contact if she “felt” contact was “emotionally distressing”. 
Sheriff Jamieson set out that such advice was legally incorrect. “It is in my opinion a matter of regret and concern that any social worker should have written such a letter. He should have advised her to return to the court to have contact reduced to nil based on these concerns, not to abrogate to herself based on her ‘feelings’ to decide whether she would be ‘justified’ in refusing contact despite the court order.”
In mitigation of the social worker’s misstatement of the law and the mother’s duty to obey a court order Sheriff Jamieson found that it was unclear whether the mother had told him that she had already raised an action to reduce contact to nil and that it had been refused by a sheriff who found that it was in the best interests of the child that the contact should continue.
Sheriff Jamieson also found “the letter from the defender’s health visitor “… to be unhelpful as it was based largely on the defender’s concerns rather than any independent assessment.”
In December 2013 the health visitor had suggested a ‘safeguarder’ be appointed to take J’s views. 
Sheriff Jamieson repeated that he found the evidence of J’s distress not to be credible but with respect to the health visitor said, “It seemed to me to miss the point that Sheriff Kelly [the sheriff who had refused to reduce contact to nil] had already determined that contact should continue.”
Sheriff Jamieson sentenced the mother to 21 days imprisonment, suspended on condition that she restore contact to the pursuer in terms of the court orders.