July 3, 2015
A father who was jailed for two years after being found guilty of abducting his 11-year-old son has failed in an appeal against conviction but had his sentence reduced to one of nine months’ imprisonment.
The Criminal Appeal Court ruled that he had “no lawful authority” to remove the child from his mother’s care, but held that the sentence imposed by the sheriff was “excessive”.
The court also observed that as a general rule, where a parent who snatches their own child in breach of a civil court order, it is “desirable” that the matter be dealt with in civil proceedings for contempt of court rather bringing criminal proceedings.
The Lord Justice Clerk, Lord Carloway (pictured), sitting with Lady Dorrian and Lord Bracadale, heard that the appellant “SB” was sentenced to two years imprisonment after being found guilty following a trial at Edinburgh Sheriff Court of forcibly removing the child from outside the mother’s flat in Edinburgh, driving him to Coventry and detaining him against his will.
However, the appellant maintained that a “miscarriage of justice” had occurred as a result of “defective representation” and challenged his conviction and sentence.
The appeal raised an issue about whether a parent can abduct his own child in circumstances where, although his parental rights and responsibilities had not been removed, the court had made a residence order whereby the child was to live with the other parent.
The court heard that the sheriff at Edinburgh had previously granted a residence order in favour of the mother, “MB”, while the father was entitled only to indirect contact to their children “by letterbox” twice per year.
The appellant argued that he had “lawful authority” to take the child, but that his counsel had failed to argue this line despite the appellant’s instructions.
It was submitted that although the appellant’s right to have his children live with him and to have contact with them had been restricted, that “did not erode the nature of his rights and responsibilities” which remained extant until removed by an express order of the court.
Refusing the appeal against conviction, the judges noted that the appellant’s proposed line of defence had been considered by counsel, who advised that it was “not tenable”.
Delivering the opinion of the court, the Lord Justice Clerk said: “Counsel’s conduct of the case cannot be regarded as outwith the range of reasonableness.
“It was a legitimate stance to take that, standing the clear terms of the sheriff court interlocutor that the complainer was to live with MB and that the appellant was authorised to have contact by indirect means, there could be no lawful authority to abduct the complainer from the close of his flat.
“The appellant’s actions flew, ex facie, in the face of a court order. They could hardly therefore be classified as lawful.”
The appellant also claimed that he had acted in the context of “previous harm” being done to the children and that he had believed his actions to be “necessary”.
It was argued that he had “acted with urgency and necessity due to the circumstances of [the complainer] having been left alone” in the close of the flat as his mother and brother had gone to the local shops, and thus “in accordance with his parental responsibilities”, but the judges rejected the argument that the appellant had “lawful authority” to take the child.
Lord Carloway continued: “The starting point for the appellant’s contention is that, as the complainer’s father, he had certain parental responsibilities and rights. In this case, the sheriff court interlocutor stipulated expressly that the complainer was to live with his mother. In such circumstances, the appellant’s right to regulate the complainer’s residence was removed. He had no other lawful authority to take the child from his home.
“There may be situations where, notwithstanding a court order to the contrary, a parent may be entitled to remove a child from his home. Necessity is one example. However, such a defence can only arise where the parent acts in the face of an immediate danger of death or serious injury to the child.
“There was neither immediacy nor danger on the facts here. The child was standing in a close awaiting the return of his mother and brother from the local shops. Necessity was not (and could not have been) run as a legitimate defence.”
The appeal posed an additional question about the effect of a concession, made by counsel in the course of a trial, on the court’s duty to direct the jury upon the matter conceded, but the appeal court rejected this ground.
The court added: “In general it is desirable that the conduct of parents in snatching their own children in defiance of a civil court order should be dealt with as a contempt of that court, rather than in a criminal prosecution. The latter course should only be used in exceptional cases where the conduct is so bad that it would be regarded by the ordinary right thinking person as criminal behaviour. The assessment of that remains a matter for the [Lord Advocate].”
However, the sentence of two years’ imprisonment was quashed and substituted with one of nine months, as the sheriff had found that, “however misguided”, the appellant had been “acting in what he perceived were the child’s interests”.
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