Detailed provisions
Failure to obey order
80.If an order under section 11 of the 1995 Act is not complied with, a person seeking to enforce the order may go back to court. In going back to court, the person may seek a variation of the order or may seek to hold a person in contempt of court for not complying with a court order.
81.Under section 15(2) of the Contempt of Court Act 1981, where the contempt is dealt with by the sheriff in the course of or in connection with proceedings other than criminal proceedings on indictment, the penalty for contempt is a maximum of three months’ imprisonment or a fine of level 4 on the standard scale (currently £2,500) or both.
82.When a court is considering whether or not to hold someone in contempt, the standard of proof is beyond reasonable doubt(4), as in criminal proceedings. However, any imprisonment ordered by the court is civil imprisonment and the contempt proceedings themselves are not criminal.
83.Section 22 inserts section 11G into the 1995 Act. The new section 11G provides that, where the court is made aware that a party has not complied with an order under section 11 of the 1995 Act, then it has a duty to investigate why the order has not been complied with. In doing so, the court must give the child concerned an opportunity to express their views and have regard to them. The Act’s standard provisions as to the manner in which the child is to give their views, the exceptions to the duty to take views and the presumption as to capacity apply.
84.Provision is also made so that the court may appoint a child welfare reporter to help investigate why an order has not been complied with. Section 9 of the Act makes provision for the regulation of child welfare reporters.
85.The existing options of seeking a variation of an order or seeking to hold someone in contempt of court remain if someone breaches an order.
86.Sections 11G(5) and (6) give the Scottish Ministers the power to amend the list of people who are able to explain a decision, by way of regulations subject to the affirmative procedure.
Johnston v Johnston 1996 SLT 499 see also Gribben v Gribben 1976 SLT 266
