Social workers win appeal against sheriff’s contempt of court ruling

Judges in the Inner House of the Court of Session ruled that the social workers’ conduct “did not amount to a lack of respect for, or defiance of, the court”.

The Lord Justice Clerk Lord Carloway, Lord Malcolm (pictured) and Lord McGhie heard that the petitioners, AB and CD, were “senior and experienced social workers” who were found in contempt of court over their failure to obey an interlocutor of Sheriff Kathrine Mackie.

Sheriff Mackie held that the decision by AB to terminate the contact arrangements between the mother and her two boys, and the approval of that decision by her line manager CD, “affronted the authority of the court”.

However, by way of a petition to the nobile officium, the judges were asked to quash that interlocutor on the basis that the proven circumstances did not amount to a contempt of court.

The judges observed that a failure to obey a court order was not automatically a contempt, as there must be a “deliberate lack of respect for or defiance of the authority of the court”.

“In the present case the sheriff’s findings do not disclose any conduct on the part of either AB or CD which…can properly be categorised as a contempt of court,” Lord Malcolm said.

On 24 May 2013 the sheriff had allowed appeals by the mother against decisions of a Children’s Hearing to reduce the frequency of contact with the children, and ruled that she was “entitled to contact with the children once per week for a period of two hours, such contact to be supervised by the social work department”.

AB had initially complied with the court’s order, but after weekly contact was reinstated the foster carers reported that it was causing the children such distress that they were finding it too difficult to manage and they might have to give up caring for them.

She decided to terminate contact and asked for a Children’s Hearing to consider that decision, but adjournments meant that the merits of the matter went unaddressed until August 22, when it was ultimately decided that the sheriff’s contact order should be followed.

The judges observed that the sheriff’s findings made it clear that the social workers had proceeded on the basis that “the risk of harm to the children outweighed the obligation to comply with the decision” on weekly contact.

Lord Malcolm continued: “The findings indicate two social workers who, with the best interests of the children in mind, did what they considered was right and proper in that regard. They were mindful of the need to respect the sheriff’s decision.

“However, they were under a professional duty to respond to the position as it developed and as it was reported to them shortly after the resumption of weekly contact, all as graphically described in the evidence of one of the foster carers.”

Delivering his opinion, Lord Malcolm said: “There will always be room for a reasonable dispute or difference of opinion on such an issue, and the court must be careful to avoid an overly protective attitude towards its own earlier decision. The court should also be sensitive to the difficult situation in which these, and no doubt the other social workers involved, were placed.

“In the context of their long involvement in the case, and the burden of a duty to safeguard the welfare of the children, they adopted a precautionary approach. This involved taking direct action pending, what was hoped to be, an early resolution by the Children’s Hearing.

“It is not difficult to envisage an alternative scenario in which no effective steps were taken and real and lasting harm was caused to the children, leading to the social workers being the brunt of strident criticism.

“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.”

He added: “In the whole circumstances the sheriff has not made any findings which justify her conclusion that the social workers’ conduct was a contemptuous affront to the dignity and authority of the court. It follows that she erred in making the findings of contempt in respect of AB and CD, and that her interlocutor of 16 December 2013 should be quashed.”

The action taken by the sheriff proceeded at her own instance after she had become aware that the mother’s law agent had written to the social work department suggesting their actions may have been in contempt of court, but no form of written application was made to the court, setting out the precise nature of the contempt.

The Lord Justice Clerk said: “The court does not consider that it is appropriate to proceed in this fashion. It ought only to be in exceptional circumstances that a sheriff should act directly to seek to secure enforcement of a final court order, which is made for the benefit of a party, by initiating action himself/herself.”