Sheriff Davidson vindicated
Regular readers will recall our February post narrating the decision of Dundee sheriff Richard Davidson to jail for three months a mother who was refusing to comply with his court orders to allow the father of her child access to the child. Now the Second Division of the Court of Session has upheld the sentence.
The case went forward as a petition to the nobile officium, "the only competent procedure by which a sentence imposed for contempt of court in civil proceedings in the sheriff court can be reviewed" (Lord Justice Clerk Gill, para 2). Lord Gill's is the only detailed opinion, and narrates the history of the case before Sheriff Davidson. He concludes that the mother "has tried [Sheriff Davidson's] patience beyond endurance" (para 44), "contumaciously obstructed the progress of the sheriff court action … defied the orders of the sheriff … absented herself from hearings with no proper excuse … caused numerous continuations [and] … disregarded the consistent advice of a succession of solicitors" (para 41). Lord Gill goes on:
"I can see no reason why we should recall this sentence. If we did, we would encourage the petitioner in the view that it is for her to decide which orders of the court she will obey. We would also undermine the authority of the sheriff and deprive the respondent of his rights. In effect, therefore, we would perpetrate an injustice at our own hand." (para 46)
It also seems that when the jail sentence was first imposed, the mother was put in Corntonvale Prison but a petition for interim liberation was granted on her giving an undertaking to comply with the court orders. But once out she did not honour the undertaking. She also failed to appear initially at the hearings appointed for the petition to the nobile officium; and once she did appear, on 12 May, she appeared to faint and was taken to Edinburgh Royal Infirmary for treatment. The clerk of court made clear to her that she should maintain contact and return to court if discharged from the hospital. This she failed to do. Finally, at a hearing on 15 May, she asked for four weeks' continuation to obtain legal representation; this the court refused and proceeded with the hearing, with the result already described.
Just for good measure, Lord Gill goes on to find that the failure to honour the undertaking given when interim liberation was granted was also a contempt of court, probably meriting a severe sentence. But, concludes the Lord Justice Clerk, "I think that we should give the petitioner the opportunity to reflect on the gravity of her conduct and to desist from it. I therefore propose that we should defer sentence … for six months."