Legal Eagle March 2021 News Update

6 Apr, 2021

                                          Legal Eagle News March 2021 News Update 

 

Catriona Grant looks at interesting cases and up and coming changes in the law in Scotland regarding children and their families.  Please be aware before reading this article that there are references to domestic abuse and rape.  This case is about the distress of one child causing all contact to stop with a parent but letter box contact going ahead for another child.

Sheriff Andre Mackie presided over an interesting case in the Glasgow Sheriff Courts in March 2021.  The sheriff suspended the parental rights of a convicted rapist in respect of his son and determined that it would not be in the best interests of the child to have any form of contact with him while still allowing him to have letterbox contact with his daughter, who he had no parental rights for.  So what was the rationale that one child should have no contact but the sister should still have indirect contact?

This case has gone on since 2013, when his father raised proceedings to see his children.  His children’s mother lodged a minute seeking to deprive him of parental rights and responsibilities (PRRs) of his son due to the father’s conviction of rape.

The mother and father were formerly in a relationship for a period of 5 or 6 years and separated in late 2010 or early 2011. The father had been involved in the supply of illegal drugs and there had been domestic abuse of the mother from the father.  On one occasion the mother was taken to hospital after being assaulted. After the son was born the father went to live in Fife as he owed money to a drug dealer and thought his life was at risk.  The mother continued to visit the father and had a baby daughter to him but he was not registered on the birth certificate. 

The relationship ended and the mother asked him to spend time with the children in Glasgow but he refused as he did not think it would not be safe for him.  He applied to the court for a contact order.  He did see his son but it was stopped as he was becoming upset, his baby daughter did not visit him.  In 2015 the father was imprisoned due to being found guilty of raping a former partner.  The mother sought an order removing the father’s PRRs of her son.

The father sent some cards to the children but the mother did not read them out and on one occasion when she did her son got upset and put the card in the bucket. The son told the Child Welfare Reporter that he got a ‘sore feeling’ in his stomach when he thought about his dad, and that he worried about him coming to his home.  The father’s solicitor argued that the mother had passed on her views to the child and she had influenced him negatively (now commonly known as parental alienation).    Sheriff Mackie in his opinion stated “The minuter (mother) appeared to give careful consideration to the questions posed by both agents (solicitor) and appeared to be giving straightforward responses. She did not appear to be obviously dissembling during her evidence nor did she appear to be prone to exaggeration.” 

On the effect of the father’s cards, he said: “Although I have concluded that the minuter (mother) could have approached said letterbox contact in a more positive manner and that, when challenged by her son about why she had to give said cards to him, she could have encouraged him to view the said contact in a more positive manner, I rejected the respondent’s (father) submissions that the minuter (mother) had influenced her son negatively towards the respondent (father) in respect of the operation of both direct contact and letterbox contact.  One might have anticipated that, if the minuter (mother) was intent on influencing the said children against the respondent, she would have ensured that both of the said children had been negatively influenced. There was no evidence led that the daughter has been adversely affected, in any way, by receipt of the cards from the respondent.” 

Addressing the boy’s views regarding his father, he said: “The boy has expressed a clear view that he does not wish any form of contact with the responden (father)t. His body language during the meeting with the child welfare reporter gave me cause for concern, being suggestive of a child in a state of distress or withdrawal when discussing his father.” 

However, in respect of the daughter, he said: “There is no evidence before the court that the  continued operation of letterbox contact between the respondent and the daughter would cause upset or distress to the daughter or that such contact would cause further upset and distress to the son. In these circumstances I am unable to conclude that recalling the order for letterbox contact with the daughter would be in her best interests.” 

Sheriff Mackie also noted: “It is clear from his evidence and from his criminal convictions that the respondent (father) has resorted to violence in the past and that he has done so in a domestic situation. It is also clear from his evidence and from his previous convictions that he has previously been involved in the supply of illegal drugs and that he has had illegal drugs in his possession as recently as during his period of release on licence between 15 June and 10 October 2017.” 

Sheriff Mackie concluded: “It would be in the son’s best interests, at this time, for an order to be granted suspending the respondent’s parental responsibility and parental right in respect of contact. As well as having accepted the evidence of the negative effect on the son’s emotional wellbeing of the contact with the respondent, I accepted the evidence that the son has been distressed by the mere presence of the respondent in the area of the son’s home.” 

For these reasons, the mother’s craves (request) for the withdrawal of letterbox contact and parental rights in respect of the son were granted. Sheriff Mackie allowed letterbox contact in respect of the daughter to continue. 

Conclusion

We do not know if the mother meant for the father to have all contact stopped with both children or not, the father does not have PRRs for his daughter but still has the right to have letter box contact.  This is the suspension of the PRRs (not removal) for the son was in connection to the boy being “distressed by his mere presence”, not how the mother felt or by her distress or due to his previous criminality but on the actions of the child.  On the actions of the son.  This is both a welcoming judgment but also raises many issues too.  Should PRR only be suspended or removed due to a child being “distressed by mere presence”? Many mothers in PAR have told us they have had their PRRs removed permanently despite having ongoing contact that was going well due to “permanency planning” and it was in the “children’s best interest”. What happens if a child isn’t distressed by the “mere presence” because they have been protected by their mother and they have no contact but the father is pursuing contact?  Does a child have to display distress to be protected?  Can this be used against mothers trying to get contact with their children in the Children Hearing System?  When children show signs of distress after contact, it is often interpreted that children are distressed by seeing their mother or family members not that they are distressed by the separation or the loss of their mother or family.

What about his statement that the mother could have been more positive about the cards?  Her son was becoming very upset by the contact, so what would being “more positive” look like?  Why is her distress not taking into account about receiving cards and letters from an ex-partner who abused her and raped another partner?  Whilst this judgment is a radical one for the courts today that often always favour and presume contact with a father, there are many sides to it.  What do you think?  Did Sheriff Mackie get it right by suspending the father’s PRR over the son and suspend contact?  What about his comments about the mother being more supportive of contact?  Perhaps PAR could discuss these matters and other matters coming from the judgment.  Get in touch and let us know what you think.