Contempt, or good faith?

On 16 December 2013 two social workers employed by a local authority were found in contempt of court by a sheriff, because they had suspended a parent’s contact with two children in the council’s care in contravention of a contact order. The sheriff rejected the social workers’ defence, that they had been acting in what they genuinely believed was the best interests of the children, on the basis that “social workers are in no different a position from anyone else and require to comply with orders of the court, children's hearings and the general law. They have no authority to act unilaterally however strongly held their views may be” (CM and GL, 16 December 2013).

Although no penalty was imposed on the social workers, the expenses of procedure, including a lengthy proof hearing, were awarded against them. The finding of contempt exposed them to investigation by their regulatory body, the Scottish Social Services Council, putting their professional careers and livelihoods at risk. The action for contempt against the social workers as individuals, rather than against their employing local authority to whom they were accountable, caused great alarm amongst Scottish professionals working with vulnerable families. The social workers, AB and CD, appealed against the sheriff’s contempt finding to the Inner House by way of petition to the nobile officium.

The Inner House has issued a unanimous decision, AB and CD Petitioners [2015] CSIH 25 (27 March 2015), exonerating the two social workers of a lack of respect for, or a defiance of, the court. The court concluded that the sheriff erred in making the findings of contempt and determined that her decision should be quashed. The substantive opinions, given by the Lord Justice Clerk and Lord Malcolm, provide a careful analysis of evidence about the social workers’ motives in failing to obtemper the sheriff’s original order, measured against the common law test for contempt of court. The Lord Justice Clerk’s opinion also reviewed the procedure by which the social workers were brought before the sheriff court and their conduct investigated.

How the case arose

The case which prompted the contempt proceedings involved two children under the supervision of the local authority by virtue of supervision requirements under s 70 of the Children (Scotland) Act 1995. The children were placed in foster care because of concerns about their welfare. In February 2013 the children’s hearing directed that the mother’s contact be reduced from weekly to monthly. The mother successfully appealed the hearing’s decision and the sheriff reinstated weekly contact, which took place until July 2013. During this period the foster carers reported that the children were exhibiting symptoms of such significant distress that the carers were finding it difficult to cope, to the extent that the placement was at risk of breaking down. The foster carers and the social workers believed that the children’s distress was linked to the reversion to weekly contact with their mother.

On 11 July the responsible social worker, AB, took the decision to suspend contact. This decision was endorsed by her manager, CD. The decision was not effectively communicated to the children’s mother until 15 July when contact would normally have taken place.

Children’s hearings tasked with reviewing contact took place on 4 and 22 July. AB had made recommendations to those hearings that contact be reduced, but neither addressed the local authority’s recommendation. Both hearings were continued for procedural reasons. A hearing scheduled for 22 August restored weekly contact and ordered further psychological investigations into the source of the children’s distress.

In the meantime, the mother’s solicitor wrote to CD alleging that there had may have been a contempt of court. This letter was copied to the sheriff clerk, who drew it to the attention of the sheriff who had presided at the mother’s original appeal. The sheriff ordered a hearing on contempt and thereafter fixed a proof at which AB and CD were ordained to lead. Evidence was taken over a period of five days.

When is a failure to obtemper a court order “contempt”?

Conduct amounting to contempt of court requires to be wilful and to show lack of respect for or defiance of the court. Integral to the offence of contempt is an intention to challenge or affront the authority of the court or to defy its orders. Unintentional or accidental conduct would not amount to contempt. Where the conduct relates to a failure to obey or obtemper a court order, to avoid a finding of contempt there must be a satisfactory explanation and excuse: Beggs v Scottish Ministers [2005] CSIH 25.

Here, the sheriff found that the decisions by AB and CD, to interfere with and terminate the contact provided for in the interlocutors of 24 May 2013, were deliberate and intentional and that their failure to comply with the interlocutors implied a lack of respect, or contempt, for the order of the court. The sheriff was critical of deficiencies in AB’s knowledge of the law, her record keeping, communication with the children’s mother and her demeanour in giving evidence. Although she was less critical of CD’s evidence, she condemned CD’s reliance on information from AB without review of independent information and her failure to countermand AB’s decision to suspend contact. These factors, in the sheriff’s view, rendered the social workers’ conduct “contumacious”, which the Inner House stated was synonymous with “stubbornly disobedient”.

The Inner House scrutinised the evidence available to the sheriff. This included AB’s reports for children’s hearings, and the evidence of the children’s foster carer, uncontested, which was consistent with AB’s account of her concerns for the children’s welfare. The court noted that the sheriff’s own findings in fact made clear there were concerns for the children’s wellbeing after the increase in contact, and fears for the foster carers’ ability to cope.

Under reference to Muirhead v Douglas 1979 SLT (Notes) 17, the court confirmed that a failure to obey a court order is not automatically a contempt. In the present case a decision made by the responsible social worker to suspend contact and refer the matter to the children’s hearing out of a genuinely held concern as to a serious risk of harm to the children could not properly be categorised as a contempt of court, even if the concern was not well founded and irrespective of any deficiencies in practice. Detailed findings as to some other “ulterior motive” or “true alternative reason” for non-compliance would be necessary to make the social workers’ conduct contumacious. The sheriff’s findings did not disclose any conduct on the part of AB or CD which could properly be categorised as a contempt of court. The court found that, in the absence of good reason grounded in clear evidence and findings to the contrary, the social workers were entitled to the presumption that they were motivated by and had the best interests of the children as their sole concern.

How should contempt proceedings be brought?

The Lord Justice Clerk noted the unusual way in which the proceedings arose, by way of a copy letter to the sheriff. The sheriff’s role in the case had concluded after the appeal in May 2013. The alleged contempt of failure to obtemper the contact order was akin to a breach of any final order ad factum praestandum made by a sheriff. The court took the view that, other than in very exceptional circumstances, it was for the party affected, rather than the sheriff who made the order, to enforce compliance with such an order. Had there been a clear statement in written pleadings of when and by what action it was alleged a contempt arose, a lengthy proof might have been avoided, as there was no real dispute about the sequence of events.

In addition AB and CD were required to lead at the proof, in effect placing on them the burden of proving that their failure to comply with the court’s order was not a contempt, rather than the other way around. Lord Carloway commented that, had it been necessary for a decision in the case, the court would have been bound to question the legality of the procedure adopted.

The responsibility of children’s hearings

The court pointed out that neither AB nor CD acted without reference to the appropriate authority. AB had brought the local authority’s concerns before the children’s hearing at the earliest opportunity. Lord Malcolm commented that it was unfortunate that so much time elapsed before a children’s hearing addressed the concerns. At the hearings on 4 and 22 July the panel focused on procedural matters. They did not address the local authority’s explicit concerns about the children’s distress. It seems there was no clarity about the panel’s view as to whether contact should be taking place in the interim before the panel made a substantive decision. It is hard to imagine that a sheriff in a child welfare hearing would have left parties uncertain as to what was expected by the court. There can be no less rigorous a requirement on panel members to make clear what they expect of the implementing local authority during any period before they are able to make a final decision.

There had been criticism of AB because she was apparently unaware of legal alternatives she could have proposed to the hearing, such as the possibility of seeking a place of safety warrant under the 1995 Act. Sheriffs generally do not make orders unless one or other of the parties makes an application. That is not the case at a children’s hearing; a social worker’s recommendation to the panel is just that. The panel members must consider the range of options available to them to safeguard and promote the children’s welfare. The children’s hearing is empowered to issue a place of safety warrant permitting regulation of contact pending determination of the case (1995 Act, s 66(1) and (4)). The panel may attach a condition regulating contact to an existing supervision requirement (s 70(3)(b)). Surely, when a hearing is convened to review a child’s case, the obligation to consider what steps should be taken in the best interests of the children falls as much on the panel members and the reporter, as the local authority social worker?

The social workers stated that they had a reasonable and honest belief that they were dealing with a children’s hearing order, not a decision of the sheriff. That argument was rejected by the Inner House. Local authority social workers cannot credibly plead ignorance of the role and functions of statutory decision-makers in children’s cases.

Scottish social workers deal routinely with children’s hearings, which operate very differently from the courts. As a consequence, they may lack the familiarity with law and legal procedure which is acquired as a matter of course by social workers in court-based welfare systems. They may fail to understand the interface between children’s hearings and the courts. Weaknesses in their legal knowledge can have serious consequences for social workers and the families with whom they work. There is a need for social workers to have a sound understanding of the legal framework underpinning their interventions, and far greater access to skilled legal advice and representation than is currently the norm.

This appeal judgment confirms that, provided they can demonstrate that they are “acting on a professional judgment held in good faith based on a concern for the children’s best interests”, social workers and other professionals working with some of the most vulnerable children in the country can practise in confidence.