The contemptuous [m]other a socio-legal investigation into the use of contempt of court as an enforcement tool in child contact disputes in Scotland, England, and Wales

Abstract

Globally, child contact enforcement is regarded as one of the most complex family law issues and most legislatures and courts around the world have grappled with identifying the most appropriate method to address a breach of a child contact order (T.M.C Asser Instituut, 2007; Scottish Government, 2020). In Scotland, England and Wales contact orders are enforced via Contempt of Court, and additional procedures are available in England and Wales. To date there has been a dearth of research into child contact enforcement and into contempt of court. No research has focused on the use of contempt of court as an enforcement tool in child contact disputes in Scotland, England and Wales, this research contributes to that gap. The research theoretical standpoint was drawn from the work of feminist jurisprudence scholars to explore mothers’ experiences of enforcement and critical legal scholar Roberto Unger’s work provides a framework to investigate contempt of courts' legal indeterminacy. The research includes analysis of case law (42 decisions), statutory instruments, newspaper articles, court orders (25) an online survey (127 respondents), and semi-structured interviews with Mothers (29), Legal Professionals (6) and Lord Wilson, Supreme Court Justice (1). A chronological mapping approach was developed as a framework to analyse and present the research findings. The research found that enforcement was consistently referred to in loose terms, such as ‘prison and change of residency. But enforcement did not appear to be grounded in a concrete understanding of the different legal issues, which were also not prescribed with sufficient precision and guidance to be predictable or foreseeable (Article 6). Enforcement appeared to be used to coerce mothers to comply with court orders they didn’t understand or could put them and/or their children at risk of harm. In addition to procedural concerns, mothers and legal professionals referred to domestic and child abuse as a significant factor in child contact enforcement.