SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Reed Lord Carloway	[2009] CSIH 44 XA2032/08 OPINION OF THE LORD JUSTICE CLERK in the Petition of TAM Petitioner against MJS Respondent: _______

Act: Party

Alt: Mrs Hughes; Flynn and Co, Dundee

15 May 2009

Introduction

[1] This is a petition to the nobile officium of the court. The petitioner seeks suspension of a sentence of three months civil imprisonment imposed on her by Sheriff Richard Davidson at Dundee Sheriff Court on 16 December 2008 for contempt of court. The finding of contempt related to the petitioner's conduct in an action raised against her in that court by her former cohabitant, the respondent. By interlocutor dated 19 December 2008 we granted warrant for the interim liberation of the petitioner from HM Prison, Corntonvale.

[2] The exercise of the nobile officium is the only competent procedure by which a sentence imposed for contempt of court in civil proceedings in the sheriff court can be reviewed (Macphail, Sheriff Court Practice, 3rd ed, para 2.25; Stair Memorial Encyclopaedia, Reissue: Civil Procedure, para 290 ).

The sheriff court action

[3] The respondent raised the action in 2005. He craved (1) declarator that he was the father of the petitioner's child, LEAMS, born on 22 December 2001; and (2) decree for contact with the child weekly on Saturdays from 10 am to 6 pm and for holiday residential contact. The respondent averred that he and the petitioner had cohabited for about four years until July 2004; that when they separated they had agreed on the arrangements for his having contact with the child; that by October 2004 the petitioner refused to allow him contact; that, having consulted a solicitor, he enjoyed a further period of contact with the assistance of the petitioner's mother, but that by December 2004 the petitioner would no longer allow him to have any contact at all.

[4] The procedural history of the action, so far as relevant to this petition, is as follows. On 15 September 2005, at the first child welfare hearing, Sheriff McCulloch granted the respondent interim contact and continued the case for a further hearing on 27 October 2005. On 27 October 2005 the petitioner failed to appear. The hearing was adjourned to 10 November 2005. On 10 November 2005 Sheriff Munro granted the respondent increased contact. On 12 January 2006 Sheriff Davidson made further minor variations to the contact order.

[5] At the end of January 2006, the petitioner's solicitors, Messrs W G Boyle & Co, Dundee, withdrew from acting. A peremptory diet was fixed for 28 February 2006. At that diet a further hearing was fixed for 9 March 2006. On 9 March 2006 a further contact order was made in favour of the respondent. The case was continued to a further hearing on 20 April 2006. On 20 April 2006 the petitioner again failed to appear. The hearing was continued to 27 April for her appearance. On 27 April 2006 Sheriff Hughes continued the existing contact order.

[6] On 15 August 2006 a joint minute was lodged in which the parties agreed that the case should proceed as undefended on the question of paternity and that an order should be made in favour of the respondent for contact with the child for four hours on alternate Sundays and for two hours every Wednesday. The sheriff pronounced an interlocutor in terms of the joint minute and allowed the case to proceed to proof by evidence on affidavit. The petitioner was then represented by Messrs Finlay MacRae, Dundee.

[7] On 23 February 2007 a minute was lodged for the petitioner in which she sought to have the interlocutor of 15 August recalled so far as it related to contact. The petitioner averred that contact had broken down and had ceased by 30 August 2006. Sheriff Davidson held that the minute was incompetent on the view that a final decree should first be obtained and that thereafter the petitioner, if so advised, could apply for variation of its terms. This minute raised for the first time the allegation that the respondent had behaved abusively towards the petitioner and that his behaviour had had a deleterious effect on the child. On 13 March 2007, in the light of that allegation the sheriff appointed Mrs Ellenore Foulis, a solicitor with extensive experience in these matters, to be curator ad litem to the child.

[8] On 7 June 2007 the curator ad litem issued her report. She found that the petitioner was the only source of negative information about the respondent and that her unproven allegations were an insufficient reason to terminate the respondent's contact. She suggested that contact might be monitored by the respondent's mother, at least during the initial resumption of contact. At a hearing on the report the petitioner's solicitor said that he was instructed to oppose any contact at all. In the light of the curator's report, the sheriff made an order for contact every Sunday from 3pm to 6pm, with effect from 10 June 2007, such contact to be monitored by the respondent's mother.

[9] On 5 July 2007 there was a further hearing before Sheriff Munro. The curator ad litem had prepared a supplementary report in which she recommended that contact should be extended. Sheriff Munro extended the period of contact on Sundays from 12 noon to 6pm.

[10] On 17 July 2007 Sheriff McCulloch pronounced decree of declarator of paternity in favour of the respondent and ordered that he should have contact every second Sunday from 2pm to 6pm and every Wednesday from 5.30pm to 7.30pm. Since then Sheriff Davidson has had sole charge of this case.

[11] On 26 September 2007 the petitioner lodged a minute seeking variation of the contact order to nil. By then the petitioner was represented by Mr Michael Ford of Messrs Ross Strachan, solicitors, Dundee. In this minute, the petitioner alleged that on 15 July 2007 the respondent had exposed himself to the child at a leisure centre. On 30 October 2007, the sheriff suspended all contact, principally in the light of the petitioner's allegation. The sheriff also appointed Mrs Lesley Macdonald, a solicitor experienced in family law, to be curator ad litem. He did so because the petitioner had made a complaint to the Law Society of Scotland that Mrs Foulis had breached the petitioner's confidentiality and had infringed her human rights. In due course the Law Society rejected the complaint.

[12] On 13 December 2007 the sheriff considered the reports of both curators ad litem on the alleged incident at the leisure centre. Having heard parties, he decided that contact should be reinstated. He made an order for contact every Sunday from 12 noon to 6pm, with effect from 23 December 2007, under the supervision of the respondent's mother.

[13] The respondent thereafter enrolled a motion to have the petitioner ordained to appear to explain her failure to obtemper the order of 13 December 2007. At a hearing on 12 February 2008 the sheriff was advised that the contact that should have taken place on 10 February had not taken place. At this hearing the petitioner made an even more serious allegation against the respondent relating to the alleged incident at the leisure centre. I need not repeat it. It was unsubstantiated. On 5 March 2008 the sheriff held a hearing on that matter. He then held that the petitioner was in contempt of court for having failed to obtemper the interlocutors of 13 December 2007 and 7 February 2008. On 27 March 2008 he called for a social enquiry report relating to the petitioner and deferred sentence to 24 April 2008.

[14] On 24 April 2008 the sheriff was informed that counsel for the petitioner had been instructed to negotiate further contact arrangements and that it had been agreed that from 27 April 2008 the petitioner would bring the child each Sunday to a meeting point at a restaurant in Monifeith at 12 noon. The sheriff continued the question of contempt to 28 April to await the outcome of the new contact arrangements. On 27 April the respondent failed to obtain contact with the child at Monifeith.

[15] On 28 April 2008 the petitioner told the sheriff that there had been confusion over the meeting arrangements and that she and the child had been inside the restaurant while the respondent was outside. The sheriff did not believe this explanation. He continued the sentencing diet to 27 May to allow contact in terms of the new arrangement to take place. Thereafter, the petitioner's solicitor withdrew from acting. The hearing for 27 May 2008 was therefore discharged and a peremptory diet was assigned for 10 June 2008.

[16] On 10 June 2008 Mr Sym, the petitioner's new solicitor, said that after discussions that he had had with the respondent's solicitors it had been agreed that contact would take place in accordance with the interlocutor of 24 April 2008. The sheriff fixed a diet for 9 July 2008 for a hearing on the petitioner's minute to have contact varied to nil. He continued consideration of his disposal for the finding of contempt to await the outcome of that hearing and of the operation of the contact order in the meantime.

[17] On 9 July 2008 the petitioner failed to appear. A medical certificate was tendered on her behalf. The matter was continued to 22 July 2008.

[18] On 22 July 2008 the petitioner failed to appear. Her solicitor advised the court that she was in hospital suffering from what he described as complications from her pregnancy. The child was due to be born in September 2008. The sheriff continued the case to 21 August 2008 for her appearance or for an explanation from an appropriate medical specialist to support her non-appearance.

[19] On 21 August 2008 the petitioner failed to appear. The case was continued to 28 August for her appearance or for an explanation from an appropriate medical specialist.

[20] On 28 August 2008 the petitioner failed to appear. Her solicitor could not provide the sheriff with any satisfactory certification to explain her absence. The sheriff granted a warrant authorising sheriff officers to arrest her and bring her before the court.

[21] On 28 October 2008 the petitioner again failed to appear. There was tendered a soul and conscience medical certificate that she had given birth and that there were postnatal complications. The sheriff agreed that the warrant should not be enforced until the child was well and had been discharged from hospital.

[22] On 4 November 2008 the petitioner was apprehended and brought to court. The diet was adjourned to 11 November. On 11 November the diet was adjourned on the motion of the petitioner to 18 November.

[23] On 18 November 2008 the petitioner failed to appear. Her solicitor told the court that she had been called as a witness at the High Court in Dunfermline, in the trial of someone who, she alleged, had abused her in her childhood. The diet was adjourned to 25 November for her personal appearance.

[24] On 25 November 2008 the petitioner failed to appear. No explanation was given. The sheriff made no further order and indicated that he expected the arrest warrant to be enforced.

[25] On 15 December 2008 the petitioner's solicitor was unavailable. The sheriff ordained the petitioner to appear on 16 December.

[26] On 16 December 2008 the solicitors for both parties told the sheriff that they had made efforts to set up contact sessions at Relate Scotland; but that by 16 October 2008 the petitioner had failed to contact Relate Scotland. The petitioner's solicitor told the sheriff that he was instructed to say that the petitioner would not make the child available for contact with the respondent. He said that he had tendered certain advice to her that she was not inclined to accept. The sheriff granted him leave to withdraw from acting. The petitioner told the sheriff that she would not make the child available for contact with the respondent. The sheriff reminded her that she had been held to be in contempt and that he regarded her as having been in flagrant breach of the court's orders over a substantial period of time. He told her that he intended to impose a period of imprisonment. The petitioner made it clear that she still refused to obtemper the relevant interlocutors. The sheriff then imposed the sentence with which this petition is concerned.

The petition

[27] The petitioner avers that the sentence imposed by the sheriff is harsh and oppressive; that she is a first offender; that she genuinely believes that she is protecting the child from potential abuse; that her own alleged history of abuse, which is referred to in the social enquiry report, was not followed up by the court before the sentence was imposed; that, as at the date of the petition, she was breast feeding the child born in September 2008; that the sheriff had other more appropriate penalties available to him and that the sentence is disproportionate. The prayer of the petition also seeks liberation of the petitioner ad interim.

[28] The petition was lodged on 19 December 2008 by Messrs Campbell Smith, WS. It narrated that during the period 18-19 December 2008, when the pursuer was in custody in HM Prison, Corntonvale, she undertook to comply with the orders of the sheriff relating to contact. The petitioner's solicitors lodged in process a written undertaking dated 19 December 2008 signed by the pursuer. It is in the following terms:

"I, TAM, c/o HMP Corntonvale, by Stirling, hereby undertake to obtemper the interlocutor dated 24 April 2008 in the Dundee sheriff court case of MS -v- TM (court ref: a868/05) by making the child LEAMS (born 22 December 2001) available for contact with the pursuer at the times, and under the conditions, of that interlocutor or any other interlocutor pronounced in said case, whichever is the later dated."

At a hearing before this court on 19 December 2008, this undertaking was relied on by counsel for the petitioner in support of the motion for interim liberation. In view of that undertaking, and the representation for the petitioner that she was breast-feeding a child, we granted the motion.

The petitioner's conduct since she was granted interim liberation

The sheriff court action

[29] After we granted interim liberation the respondent resumed his efforts to obtain contact with the child. He was unsuccessful. It became apparent that, notwithstanding the petitioner's short period of imprisonment, she continued to be in contempt of the sheriff's interlocutors of 24 April 2008 and 1 and 8 February 2009.

[30] We now know from documents lodged by the respondent that in January and February 2009, the Reporter to the Children's Hearing investigated the petitioner's allegations against the respondent and decided that no action was required.

[31] The case was called again before the sheriff on 10 March 2009. By then Messrs Campbell Smith, WS had withdrawn from acting in the present petition and had declined to act in the sheriff court action. The sheriff continued the hearing to 26 March to enable the petitioner to obtain representation. On 26 March she was represented by Mr Fraser, solicitor, Arbroath. To enable Mr Fraser to acquaint himself with the case, the case was continued until 2 April 2009.

[32] On 2 April 2009 Mr Fraser informed the sheriff that his instructions had been withdrawn. The respondent's solicitor told the sheriff that the curator ad litem, with the assistance of the local manager of Relate Scotland, had continued to make contact facilities available but that eventually the petitioner had made it clear that she had no intention of co-operating with either the curator or the staff of the contact centre. The petitioner then addressed the sheriff on her own behalf. She said that she remained opposed to contact.

[33] When the sheriff told the petitioner that there might be a further custodial disposal by reason of her continuing contempt, she appeared to faint. On examination by paramedics, all of the petitioner's vital signs were found to be normal. The sheriff nonetheless adjourned the case until 20 April.

[34] On 20 April the petitioner appeared on her own behalf. She bent over her chair and appeared to hyperventilate. She was taken by ambulance to Ninewells Hospital, Dundee. The case was adjourned until 27 April. In his report of these hearings, the sheriff, while expressing no view on the petitioner's medical conditions, observes that it appears to be an unhappy coincidence that every time she appears before him expecting to be sentenced for contempt she becomes apparently significantly unwell.

Court of Session

[35] On 30 April 2009, we held a By Order hearing in this petition. The petitioner admitted that she had flouted the orders of the sheriff. She tendered an apology for having done so, but added that she had no intention of obeying the order for contact because she did not consider that it was in the child's interests. Despite the terms of the joint minute lodged in the sheriff court process, she said that it was unlikely that the respondent was the father of the child.

[36] We then appointed a hearing to be held on 7 May 2009 on the petition itself and on the question whether the petitioner was in contempt of this court in respect of her written undertaking. We impressed on her the gravity of the position and the importance of her being legally represented.

[37] Late in the afternoon of 6 May, the petitioner notified our clerk by e-mail that she would not attend the next day's hearing because of her deteriorating health. As an attachment to the e-mail the petitioner sent a scanned version of an alleged soul and conscience medical certificate. It was in fact a letter dated 28 April from her general practitioner, Dr Laura Webster, stating only that the petitioner had told her that she had attended court on 27 April but had been taken to Ninewells Hospital. Dr Webster enclosed with this letter a copy of a letter dated 28 April sent to her from the Accident and Emergency Department of Ninewells Hospital. From the scanned version of that letter it appears that when the petitioner attended there, the diagnosis was one of irrational collapse and that she was forthwith discharged with no follow-up.

[38] On 7 May, the petitioner failed to appear. We continued the hearing to 12 May. We ordained the petitioner to appear at that hearing under certification that if she failed to do so the petition might be dismissed.

[39] On 12 May the petitioner came to this court. When the case was called, she appeared to faint. A qualified first-aider immediately went to her help. He could find nothing wrong with her and concluded that she had not fainted at all. The petitioner then made her way to Parliament Hall where she appeared to collapse. The clerk of court made diligent efforts to call for a police surgeon but none was in attendance in Parliament House or in any of the nearby court buildings. The first aider remained in attendance. Within about half an hour, paramedics and an ambulance team arrived and took the petitioner to the Royal Infirmary, Edinburgh. The clerk of court made clear to the petitioner and to her brother that they were to report to her from the Infirmary and that if she were to be discharged, she was to return to the court for the hearing. In the event, nothing was heard from them until about 4pm when her brother reported to the court administration that she had been discharged about an hour and a half earlier. By then the court had risen for the day and had appointed the hearing to be continued to 15 May. In the meantime, the petitioner had gone to Craigmillar Police Station with a view to making a complaint against the clerk of court for her alleged dilatoriness in arranging her admission to hospital.

[40] On 15 May the petitioner appeared without representation. She produced no medical evidence to support her alleged indisposition on 12 May. She asked for a continuation of four weeks to enable her to obtain legal representation. In view of the history of her conduct, we refused that request. We then proceeded with the hearing on the petition and on the question of the petitioner's contempt of this court.

Conclusions on the petition

[41] In my view, this petition is groundless. The history that I have narrated demonstrates that the petitioner has contumaciously obstructed the progress of the sheriff court action and defied the orders of the sheriff. She has absented herself from hearings with no proper excuse and caused numerous continuations. She has disregarded the consistent advice of a succession of solicitors. I infer that she has cynically attempted to arm herself with the plea that it is now too late for contact to be resumed.

[42] The worst aspect of this case, in my opinion, is that in order to deprive the respondent of contact the petitioner has made grave allegations against him. Although the social worker who submitted a social enquiry report to the sheriff seems to have taken the petitioner's word for them, those allegations are not supported by any evidence.

[43] By defying the orders of the sheriff, the petitioner has affronted the authority of the court, frustrated the rights of the respondent and deprived the child of contact with him for a year and a half.

[44] In my opinion, the sheriff has given the petitioner every consideration at every stage. She has tried his patience beyond endurance.

[45] In a case of this kind there is the special consideration that a sentence of imprisonment separates the child from the primary carer. That consideration is relevant; but not paramount. The court must uphold the rule of law and protect the interests of the innocent party. While the court must be mindful of the effect of a separation of mother and child, it is entitled nonetheless to impose a sentence of imprisonment if the circumstances warrant it (cf A v N (Committal: Refusal of Contact) [1997] 1FLR 533; F v F (Contact: Committal) [1998] 2 FLR 237). In view of the persistence of the contempt, the consequences of it, and the petitioner's impenitence, the sheriff was justified in imposing the sentence complained of. In my view, he had no other reasonable option.

[46] I can see no reason why we should recall this sentence. If we did, we would encourage the petitioner in the view that it is for her to decide which orders of the court she will obey. We would also undermine the authority of the sheriff and deprive the respondent of his rights. In effect, therefore, we would perpetrate an injustice at our own hand.

[47] The petitioner has learned nothing from this experience. She has made a belated allegation that the respondent may not be the father of the child. She has made a provocative apology to this court for her conduct while telling us that she intends to persist in it. She now faces the prospect of a further sentence from the sheriff for her continuing contempt. For that she has no one to blame but herself.

Contempt of court (Court of Session)

[48] When this petition came before us, the petitioner gave us a signed undertaking in the terms that I have quoted. That being an undertaking in foro, it was a material factor that led us to grant interim liberation. As we now know, the undertaking was false. Having heard the petitioner and counsel for the respondent, I conclude that the petitioner's deceit constitutes a contempt of this court.

Disposal

[49] I propose to your Lordships that we should refuse the prayer of the petition and that we should make a finding that the petitioner is in contempt of this court. If we were to pass sentence for that contempt now, the sentence might be severe. I think that we should give the petitioner the opportunity to reflect on the gravity of her conduct and to desist from it. I therefore propose that we should defer sentence for the petitioner's contempt of this court for six months.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Reed Lord Carloway	[2009] CSIH 44 XA2032/08 OPINION OF LORD REED in the Petition of T.A.M. Petitioner; against M.J.S. Respondent: _______

Act: Party

Alt: Mrs Hughes; Flynn and Co, Dundee

15 May 2009

[50] I agree with the Opinion of your Lordship in the chair and have nothing to add.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Reed Lord Carloway	[2009] CSIH 44 XA2032/08 OPINION OF LORD CARLOWAY in the Petition of T.A.M. Petitioner against M J.S. Respondent: _______

Act: Party

Alt: Mrs Hughes; Flynn and Co, Dundee

15 May 2009

[51] I agree with the Opinion of your Lordship in the chair and have nothing useful to add.