Contempt of Court for Failure to Obtempur Order

A recent decision accepted a mother had shown a “flagrant disregard” for the court’s authority for failing to stick to a contact order. But no punishment was issued to the mother. However, the Appeal Court found the decision to issue no punishment upon her was “open” to the sheriff, having regard to the facts and circumstances of the case.

The appellant submitted that there had not been proper consideration given to the appropriate consequence of the breach of the order. However, this argument was rejected.
Sheriff Principal Stephen said: “In this appeal it is contended that the sheriff failed in her duty to determine the matter of punishment which was live before her and failed to adequately consider the facts and circumstances of the case. As we have observed, the sheriff may have been unduly concerned about following the same or similar procedure which attracted criticism in C.M. v S.M.

“However, in the following paragraph it is plain to us that the sheriff had regard not only to other sentencing options but in particular the respondent’s personal circumstances and mental health problems which she had been informed of on 20 January 2017. The sheriff took into account the child’s circumstances and the effect of the separation of the mother and ‘T’ which imprisonment would bring about. That has been described as a special consideration and relevant factor in determining sentence or penalty (M. v S. 2011 SLT 918). These factors, in our opinion, constitute sufficient reasons to explain the sheriff’s decision to make no order.

“In these circumstances we reject the proposition that the sheriff failed to have regard to the circumstances of the case. She gave considerable weight to the personal circumstances of the contemnor and the child as she required to do. That she failed to give what the appellant describes as sufficient weight to the nature of the contempt is nothing to the point given that it is in the court’s sole jurisdiction to determine what, if any, penalty to impose following a finding of contempt. The disposal of the case is one which is competent and open to the sheriff to make.”

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