Put an END to the use of Contempt of Court in Child Contact Actions in Scotland
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Would it surprise you to hear that mothers in Scotland are being sent to prison yet have never been accused of a crime nor committed a criminal offence.There is an anomaly in the Scottish Family courts which has created a route to civil imprisonment for up to 3 months as the common law of contempt of court has been deployed to enforce child contact orders.
Research into the "socio-historical emergence of Civil Contempt of Court in enforcing child contact orders in Scotland" identified this modern anomaly but could find NO evidence that there was any benefit to a child in a parent pursing a contempt action relating to the welfare of a child.
A mother is more likely to have a Contempt of Court action raised against her stemming from a child contact action than a father. A mother in Scotland may also experience up to 3 months in Prison as a Civil Prisoner (having never committed any crime) stemming from a child contact order. Mothers living in Hamilton are disproportionally more likely to have a Contempt of Court action, raised against them in a child contact action than anywhere else in Scotland. This is closely followed by Glasgow, Dundee and Kirkcaldy.
This was further supported by legal professionals who highlighted the issues with obtaining legal aid to act against a father who disobeys a contact order. It was their position that Scottish Legal Aid Board (SLAB) would expect a lawyer to simply apply to the court to terminate the contact order rather than pursue a Contempt of Court action. This position is further supported in evidence from SLAB which disproportionality approves funding for fathers to raise a contempt action against a mother.
The research also identified that there is no appetite within Scotland to deal with a father who flouts a court order. The research was unable to identify any case where a father had been sent to prison for defying a child contact order in Scotland. Lawyers also suggested that it would be difficult to find a Sheriff in Scotland who would entertain a Contempt of Court action against a father.
The evidence would suggest that fathers have a unique legal position which safeguards them from any of the punishments contained in the Contempt of Court Act 1981, which includes civil imprisonment up to 3 months. The Law is clear, anyone who breaches a court order can be found in Contempt of Court but custom and practice in Scottish family courts has a gender bias.
All research participants referred to the changes in the Family Law (Scotland) Act 2006, as the catalyst for the exponential growth in Contempt actions against mothers in Scotland. Prior to 2006, SLAB had only funded 1 contempt action relating to a child contact case. The research also identified that the process adopted in Contempt of Court actions created significant problems and afforded opportunities for injustice for mothers and children to occur. These issues do not support the overarching aim of the family court to prioritise the best interests of the child.
The research identified a strong narrative between a mother raising concerns of child abuse and domestic abuse and her being threatened with contempt. Mothers and children were often punished rather than taken seriously. In other cases, women were put in cells in Sheriff Courts to think about how they could make contact work and if they didn't come up with any suggestions by 5pm they could find themselves in prison for up to 3 months. In other cases contempt actions were raised as a threat, a black mark or a weapon in the family actions.
Using Contempt of Court to enforce child contact orders is not appropriate and research participants believed it was creating significant long term damage to children. In a high proportion of the Contempt of Court cases in Scotland, mothers were able to successfully appeal the Civil Findings of Contempt, but the damage had already been done to the child and their family. The issues narrated in many appeal judgements highlighted the plethora of issues in using this piece of law to enforce an order relating to a child. It simply cannot be the position that because there is no alternative that this modern phenomenon is allowed to continue.
Children in Scotland deserve better and should not suffer at the hands of contempt of court. It's time to end contempt in our family courts and with it goes any opportunity to threaten or send a parent to prison in connection with a child contact order. This should refocus the issues back to the child and the welfare of the child.
In conducting this research, I investigated many other European and International jurisdictions and there are many ways to address issues relating to our children which don't resort to prison. Lets use common sense and make the best decision for our children to ensure they don't suffer anymore.
Please sign and share this petition to put pressure on the Scottish Government to end the use of Contempt of Court in actions relating to children and specifically actions relating to child contact order.
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