TJ v SB [2018] SAC (Civ) 15 (Sheriff Appeal Court, 30 May 2018)

Background: The respondent had been found in contempt of court for refusing to facilitate contact between the appellant and their child ‘T’, in proceedings that had combined the question of contact and the question of contempt.  The appellant in this appeal to the Sheriff Appeal Court, complains that the sheriff acted inconsistently and erred both in her interpretation of and reliance on CM v SM (supra). The appeal was not against the ‘sentence’ but the sheriff’s failure to make any further order as to the punishment or penalty for the respondent’s contempt of court or to give adequate reasons for her decision.

Held: The Sheriff Appeal Court considered that the Sheriff had potentially placed too much reliance on the case of CM v SM.  There were two continuations in which the Sheriff had given the mother the opportunity to mitigate the contempt of court by failing to adhere to the contact order.  The delay of six months for the continuations was not considered excessive. The court agreed that there was an inconstancy between the flagrant contempt of court and the sheriff’s decision not to admonish or to make no order at all.  However, the sheriff had considered the personal circumstances of the mother and her mental health issues.  There was consideration of the child’s welfare if separated from the mother during imprisonment.  The Sheriff Appeal Court held this was sufficient reasoning not to make any order. The appeal was refused.

Julian Aitken: “Sh App Ct on punishment for contempt (not permitting contact). Reiterates punishment for civil contempt is essentially coercive rather than punitive”

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