Father refused contact despite abuse allegation not being proved

Family|July 19th 2016

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

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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Comments(2)

  1. The Devil's Advocate says:

    The assumption of parental parity is an accord and not a legal right. We are not that civilised in the UK. This is the reason why certain sections of the 89 Childrens Act in England and Wales at least (Scotland unknown ), needs repealing because certain sections are totally anachronistic and has been perverted beyond belief by parents who wish to do so and act as abusers themselves! This is new research and is quite illuminating!

    If the father was alleged to be a sexual child abuser then criminal proceedings should be brought against him and let normal rules of empirical evidence be brought to the Court. They were not established only “Chinese Whispers” of “well his relationship WITH his natural daughter was thought to be of a concern and not in her best interest.” Judge Jeffrey as such, did strike back in this case.

    In the UK we don’t believe in parenting. We have a guessing game…”ls he or she a good parent or not …let’s spin a coin and see”, especially when annually 150,000 children, (ONS 2014) are separated from half their family by a hostile parent. We are a laughing stock in other more civilised nations and should learn from them.

    Paedophilia and psychophilia are terroristic abuses and the latter more prominent than the former and often used by accusers as an excuse to rid the other parent using any of the forms of domestic violence by allegations as a mean to their psychotic ends. The former is easy to identify as it is a form of criminal conviction currently (the latter not as yet but it is coming and our legislature will not belong in making legislation to support this. We can’t let other countries leas the way!

    Wouldn’t it be the in the better interests of the child and her future to know that proper investigations of her fathers abuse were real than assumed. Otherwise again it makes a laughing stock for any “mud slinging” or DSM 5 psychological disordered parent to “parenticide” their child from the other and half her family! God we are backward. The child will suffer and all in her family who are naturally the only ones from both parents who have her best interest at heart and not those without emotional permanency!

    When will we enter the 21st Century and identify a crime when it is and stop playing games with our children’s future. A crime is a crime and it should determined and not relegated to pure assumptions based on a play of words! There are ways to re-engage a parent with their child in these contemporary times. Haven’t we the wit to use this…for God’s sake! Get real!

  2. Vincent McGovern says:

    “It is hostility based on strongly held beliefs.” Well well, many a witch was burned at the stake because of ‘fear based on strongly held beliefs.’ And now we have the legitimisation of parental alienation based on an allegation that has not even been established in civil let alone the higher threshold of criminal standard. And I bet many gender vigilantes in the domestic violence agencies are scouring that judgment because of the ideological buttress it provides to the anti shared parenting. No doubt we will hear from the hand wringing Pontius Pilates ‘we promote shared parenting of course, when safe to do so. And these are very serious allegations.’ Yes indeed, the unlimited power of an unproven allegation in family court.

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