What happens if a parent doesn’t comply with a court order for their child to have contact with the other parent? The consequences for the non-complying parent could be a custodial sentence, a fine, or both.
In a judgement released on 6 February 2024 in the case M v E (2024) SC ABE 7 Sheriff Philip Mann found the mother of a child (E) to be in contempt of court.
The contempt of court was in relation to E’s repeated failure to make the child (H) available for contact with their father (M) as ordered by the court on 23 August 2022. While it is unclear from the judgement when M last saw the child, it is assumed that he last had contact sometime before 23 August 2022.
Due to repeated failures of E to attend procedural hearings (resulting in her being apprehended to appear before the court) and the multiple withdrawals of E’s various agents, it took nearly 18 months between the time the contempt of court action was raised and the Sheriff’s judgement.
When deciding to make an order for contempt of court, the Sheriff must use the criminal standard of “beyond a reasonable doubt”, meaning that the Sheriff must be convinced that the defender is guilty and that no other logical explanation can be derived from the evidence.
The particular test to be applied to contempt of court cases is set out in CM v SM (2017), that “all that needs to be proved in such a case is that the court made an order for contact, that contact did not take place in accordance with that order and … that the failure resulted from wilful disobedience.”
This case highlights that contempt of court in a contact action cannot be proved by failure to comply with the court order alone. There must be “wilful disobedience”, meaning an act or omission that is carried out intentionally and voluntarily with specific intent to disobey the court.
The maximum penalty for a finding of contempt of court is three months’ imprisonment or a fine of £2,500, or both.
Most people comply with court orders for contact with children. In cases where a parent refuses to comply, the results of cases such as M v E can present a rather bleak outlook for the parent who has not been able to see their child. While a finding of contempt of court is punishable with imprisonment or a fine, this does not change the reality is that the child has been prevented from having a relationship with the non-resident parent. Depending on the age of the child, they may have little to no memory of this parent.
Once the offending parent has served their term in prison and/or paid their fine, what next? In theory, the offending parent is free to go right back to preventing contact between the child and the non-resident parent.
One alternative is for the non-resident parent to apply to the court for residence of the child, the test for such an order being that it is necessary and in the child’s best interests. An argument can be put forth that it is best for the child to have contact with both parents, and the only feasible way this can be carried out is for the child’s residence to be changed.
The circumstances highlighted in M v E may be rare, but they can have catastrophic impacts on the child. It is incredibly difficult to predict how long contempt of court proceedings might take because, as is highlighted in M v E, there may be multiple bumps in the road to getting to a final hearing resulting in a lengthy action.
All possible steps should be taken to get a parent to comply with a court order before contempt proceedings are raised. For example, the court might consider appointing a curator ad litem where a parent has refused to engage in proceedings or follow any orders. A curator’s job is to represent the child’ best interests in court proceedings and their remit can be expanded to include speaking with the non-complying parent and encouraging engagement with the court.
There are many reasons why a parent might wilfully disobey a court’s order and consideration must be given to the impact of trauma in that parent’s life. The court may wish to consider ordering mediation, family therapy or Parenting Apart classes for the parties to a contact action. While these options may not always be successful they can present a more holistic approach to conflict resolution than arguing in court.