Child Contact Orders - What happens if contact doesn't take place?
When a court order is in place stating the times a child has contact with a parent each week, and the parent with whom the child lives wilfully refuses to obey the order, then the other parent is entitled to ask the court to make a finding of contempt. Disagreement with a sheriff's decision does not entitle a parent to withhold contact.
The situation is less clear cut when the reason given is that the child doesn't want to go.
The resident parent always has a responsibility to encourage and promote contact. Undue distress on the part of the child could be a reason for a court not to make a finding of contempt but in such cases the matter should be quickly referred back to the sheriff.
At what age can a child express a view?
All children are entitled, but not obliged, to express their view and there are different ways in which this can be done depending upon the child's age and circumstances.
- Children over 12 are sent a form, inviting them to write to the sheriff.
- Although a child can attend court and speak directly to the sheriff it is common for the court to appoint a reporter or curator to speak to the child more informally.
The court must listen to, but is not bound by the child's opinion and must always consider the child's age and maturity and any influence from an adult or sibling.
What if the child is ill?
Sometimes contact does not take place due to illness. Depending upon the circumstances, this is unlikely to be a contempt of court but the parent with care should always try to obtain a medical report or copy prescription.
Third party advice
Advice from a social worker suggesting contact should not take place does not justify breaching a court order and the matter must go back to the sheriff as soon as possible. Social Workers can seek emergency orders, if appropriate.
Cases of contempt are invariably brought against the primary carer of the child. But what happens if a parent with a contact order does not exercise it? Or always collects or returns late? In my experience the court never makes a finding of contempt. Should it?
If you'd like to discuss your circumstances or child contact orders in more detail, please contact a member of our family law team.