It’s a sort of ‘nuclear option’ for the mother in a child contact dispute, particularly where the child is a girl: make an allegation that the father has sexually abused the child. It is hard to think of a more serious issue that could be raised, and it is obviously likely to have a serious adverse effect upon the father’s chances of obtaining contact with his child.
Now, before I go on I must emphasise that such allegations may of course be based upon fact, or at least a genuine belief or concern on the part of the mother. It would be just as wrong to automatically assume that such an allegation is without basis as it would be to automatically assume that it is true. Sometimes, however, the court may not make a definite finding one way or the other, as we shall see.
The recent Scottish Court of Session case J v M was one such case. It concerned a father’s application for contact with his daughter, who was born in (about) March 2010. The father and mother had been in a relationship which began in February 2009 and ended just five days after the child was born. Since then the child has lived with the mother.
The father issued his application in November 2010. Initially things seemed to be progressing ‘normally’: the father was granted supervised contact at a contact centre, and this was followed by residential contact. However, in February 2014 contact was suspended because of certain allegations that he had sexually abused the child. The father has not seen the child since.
The father’s contact application continued to a final hearing in July 2015, when the sheriff held that contact with her father was not in the child’s best interests. The father’s appeal to the sheriff principal was refused and he appealed again, to the Court of Session.
The main theme of the father’s appeal was that the sheriff had not made an actual finding that he had abused his daughter, and that in the absence of such a finding there was nothing of sufficient weight to overcome the benefit to the child of continuing to see her father. The sheriff had, however, found that there were reasonable grounds to suspect that the child had been the subject of some aspect of sexual abuse when in the company of her father.
The Court of Session did not accept the father’s argument. The allegations may not have been proved, but the mother and her family had reasonable grounds to suspect abuse, and the allegations had caused a deep and ongoing hostility between the parents and their families, which would continue to be a major obstacle to the operation of contact. The sheriff had referred to the situation as a ‘maelstrom’, and had taken the view that a child of such an age would not be able to cope with it.
The father also argued that in the absence of a finding of abuse the sheriff should have taken a more active role to overcome the parties’ mutual antipathy and enforce contact. To this the Court of Session said:
“Clearly a parent should not be given a veto over contact. While it is far better if parents can negotiate their own arrangements, once it is plain that this will not happen, other things being equal, the court has a responsibility to respect and promote family relationships, including that of a father with his daughter. This can include emphasising to the parties at the outset that obedience to the court’s timetable and orders is not optional. In a number of recent decisions south of the border … one can see examples of the court exerting its authority in a robust manner, all in the interests of the child, who might otherwise become a mere pawn in the parents’ dispute. However, the present is not a case of a parent who, with no reasonable basis, implacably opposes contact, and sets out to frustrate the court’s orders. On the contrary there is, as the sheriff carefully explained, a foundation for the [mother’s] and her family’s hostility to the whole idea. It is not a ploy or pretext for shutting out the [father]. It is hostility based on strongly held beliefs.”
It went on:
“The plea for a “pro-active sheriff” enforcing contact ignores the fact that the trial sheriff reached the view that any contact would be against the best interests of the child, which is the paramount consideration. Once that decision was reached, the time for ordering contact was over.”
In the circumstances the Court of Session concluded that the sheriff’s decision had not been plainly wrong. A specific finding of abuse of the child by her father was not a pre-requisite for refusal of his application for contact. Accordingly, the father’s appeal was refused.
The full report of J v M can be read here.
Photo by Stefano Corso via Flickr