Court quashes social workers' contempt findings over suspended contact
Two Edinburgh social workers who decided to suspend contact between two boys and their mother ordered by a sheriff, have had findings of contempt of court against them quashed by the Court of Session.
Lord Justice Clerk Carloway, Lord Malcolm and Lord McGhie ruled that as the two, who were not named, had acted for reasons which they considered to be in the best interests of the children on a professional evaluation of the situation, their conduct did not meet the necessary standard of deliberate lack of respect for or defiance of the authority of the court.
The boys who were subject to the contact order had been taken into care. A children’s hearing had reduced a contact requirement in favour of their mother from weekly to monthly, but on appeal the sheriff restored a requirement for weekly contact with each child. After this appeared to be causing problems with the boys' behaviour, the social workers requested a further children's hearing at an early date to reconsider contact, and decided to suspend contact over the interim 11 days. The hearing was unexpectedly adjourned and the mother then complained.
The court noted that the social workers' actions had been taken with a view to having the issue of contact re-ventilated as soon as practicable by the appropriate legal authority, the children’s hearing. Had the issue been resolved at the scheduled hearing, "it is hard to imagine that considerations of contempt would have arisen", Lord Carloway said.
Lord Malcolm stated: "The petitioners are experienced social workers who, in the absence of some very good reason grounded in clear evidence and findings to the contrary, are entitled to the presumption that, like the court and the children’s hearing, they were motivated by and had the best interests of the children as their sole concern. Differences of opinion and errors of judgment will arise from time to time, but a sheriff or judge, faced with an allegation of contempt on the part of professional people in the execution of their duties, must be careful to distinguish these from an affront to the court’s authority."
Lord Carloway added that the procedure adopted by the sheriff, initiated by letter, was of questionable legality. Where the matter did not arise out of conduct in court, and proceedings were no longer pending, "the normal procedure is for the complaining party to lodge a summary application in the form of initial writ, no doubt craving that the defender be ordained to appear at the bar of the court to explain his/her breach of the relevant order. That would enable the defender specified in the writ, as alleged contemnor, to know exactly what is being alleged, and when and where it took place. It would enable him/her to obtain appropriate advice and to consider his/her position in normal course".