A Sheriff Appeal Court decision has overturned a Dunoon father’s conviction under the 2018 Domestic Abuse (Scotland) Act.
The Appeal Court decided that the sheriff had erred in repelling the defence’s ‘no case to answer’ submission on behalf of the father.
In its discussion the Appeal Court accepted that section 10 of the Act is deliberately widely drawn and must be considered ion the facts of each case. However, the mens rea of the offence requires a finding that either the appellant intended to cause the complainer psychological harm or that he was reckless as to whether his behaviour had that result. The court was not satisfied that these requirements were met in this case. The sheriff had taken a very restrictive view of the Act.
The father had just obtained a court order to pick up his five-year-old daughter for contact every Friday at Dunoon Contact Centre at 3.45pm. The Contact Centre is a few minutes walk from his daughter’s primary school.
On the first day that this contact was due to happen he sat on a bench outside the school at 2.45 to see his daughter in her school uniform and waved to her as she left school with her mother. The child waved back. The child’s mother complained via her solicitor that she ‘objected’ to his presence but not that she felt afraid or intimidated. The father took legal advice and was told that there was no legal restriction on him being outside the school. On two following weeks he went to the school again but stayed in his van to minimise contact. The mother was not present on those occasions.
When the case was heard the father was convicted under section one of the 2018 Act in that he: “engaged in a course of behaviour which was abusive of his ex-partner in that he repeatedly loitered at Dunoon Primary School whilst she was attending there to collect their child”.
The Appeal Court overturned the conviction on the basis that the sheriff had erred in concluding that a reasonable person would consider that the father’s mere presence at his daughter’s school in circumstances where the child’s mother had a strong aversion to him would cause her fear or psychological harm in terms of the 2018 Act.
This father had no history of previous domestic abuse. The mother hadn’t mentioned in her complaint that she was threatened, intimidated, fearful, alarmed or distressed. He had taken and followed legal advice after the initial complaint from the mother’s solicitor.
At Shared Parenting Scotland we often are asked whether a parent can attend school events outside the time for which they have a contact order. This judgement shows that waiting outside the school when a child leaves may not necessarily be an abusive offence against an ex-partner offence under the 2018 Act. In other circumstances mere presence at a location could lead to conviction if it is established that turning up is directed at the other parent and is intended to cause her or him psychological harm or is reckless as to whether that might be the result even if not explicitly intended.
It was crucial to this appeal that there was no allegation of previous domestic abuse; that the mother just ‘objected’ to him being there to see his daughter; that he had taken legal advice before attending a second time; and that he had stayed inside his vehicle to mitigate any suggestion that he was being provocative.
We advise parents who are involved in acrimonious contact disputes to be very careful about doing anything outside the contact order, however innocuous it may feel, and especially avoid repeating the action if you receive a complaint from your ex-partner after the first time.
It’s tragic that behaviour such as waving to your child as s/he comes out of school or if you happen to see them in the street could be deemed a criminal act. Procurators Fiscal will welcome the clarification this Sheriff Appeal Court judgment provides that the while the 2018 Act is “widely drawn” it mustn’t be unjustly narrowly applied.
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