SYMPATHETIC, sound advice could keep some estranged parents out of jail when it comes to access to children, says Ewan Campbell
It often comes as a surprise to clients to learn that where they have the day-to-day care of any children from a broken relationship, the Scottish courts generally expect them to encourage contact with the other parent. There may of course be very good reasons why that does not happen. But the starting point for the court is that it is in the child’s best interests to have contact with both natural parents.
When the parent with care, frequently the mother, decides to thwart or obstruct court-ordered contact, they play a dangerous game. In extreme cases, the court could conclude that the parent with care is not meeting the child’s emotional needs and make an order that the child lives with the other parent. Jail time might also be a possibility if contempt of court proceedings are raised.
In June, Rebecca Minnock and her three-year-old son went missing in England after the court ordered her son to live with his father. She had been involved in a bitter two-year battle with the boy’s father over contact. She obstructed court-ordered contact and made false allegations about the boy’s father.
Her behaviour was such that a social worker formed the view that the child was not emotionally safe with his mother, and as a consequence the court ordered the boy to live with his father.
At this point, Ms Minnock and her son went missing. After a flurry of press activity, mother and son were found; the child was handed over to his father and Ms Minnock’s mother was jailed for contempt of court after admitting withholding information as to Ms Minnock’s whereabouts. Ms Minnock herself was not jailed.
This was largely down to the fact that the boy’s father decided not to press ahead with contempt proceedings. The judge commented that had he done so and had Ms Minnock been found guilty, she would have been jailed for at least 28 days.
The aggrieved parent who is unable to secure the desired contact through the court can find themselves in some difficulty if they act contrary to court orders.
A father was jailed at Edinburgh Sheriff Court for two years after abducting his 11-year-old son. The Family Court had ordered that the boy live with his mother. The father continued to have parental rights but the court ordered very limited contact between father and son.
Aggrieved, the father took his son forcibly to England and detained him against his will. It was an unusual step for criminal proceedings to be brought against the father. The question arose as to whether a parent could abduct their own child, particularly when they still had parental rights.
The father appealed and earlier this month he failed in his attempt to overturn his criminal conviction. He did however manage to have his sentence reduced to nine months on appeal.
The Appeal Court commented that the father had no lawful authority to remove the child as he had done, given the order of the court that the child reside with his mother. The court also commented that the usual course of action in such cases would be to deal with them by way of contempt of court proceedings; however, in this particular case, the circumstances were such that the case merited a criminal prosecution.
These are both extreme cases but it is by no means unusual for a parent aggrieved by a court order to seek to obstruct it in some way. Invariably that parent believes they are acting in the child’s best interests. However, these cases highlight how the pressures of going through court proceedings in respect of the children of a break-up can often make parties lose sight of why they are there and what they are trying to achieve.
Shared parenting can be difficult, particularly when the natural parents do not get on. Unfortunately when parents cannot come to an agreement by themselves, they are often left with no choice but to look to the court for help.
The ultimate aim of the court is to assist the parents to come to some agreement rather than to dictate; however, the courts will always place the child’s needs before the parents’ desires. It is therefore always hoped that common sense will prevail between parents and, with the assistance of sympathetic and experienced family law solicitors, agreement can be reached between them without the need for recourse through the courts.
• Ewan M Campbell is an Associate and Accredited Specialist in Family Law at Russel + Aitken LLP www.russelaitken.com