Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 25

P462/14

Lord Justice Clerk

Lord Malcolm

Lord McGhie

OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK

in the petition by

AB and CD

Petitioners;

to the nobile officium

Act: Ellis QC; Jones Whyte

Alt: J Scott QC, McAlpine; Hughes Walker

27 March 2015

[1]        For the reasons given by Lord Malcolm, I agree that, having particular regard to the motives of the petitioners, their conduct did not amount to a lack of respect for, or defiance of, the court.  The petitioners elected to discontinue the contact ordered by the court.  Such conduct may, of course, amount to a contempt in certain circumstances.  It may well constitute a prima facie case.  However, it must be accepted that there are situations in which social workers, who are entrusted with the task of supervising contact, may stop contact ordered by the court where, for example, the child’s safety would be put at serious risk were the contact to take place.  That being so, whether that cessation amounts to contempt will depend upon the facts and circumstances of the particular case.  In this instance, whether the petitioners were correct or not in their professional evaluation of the situation, it is evident that they acted for reasons which they considered to be in the best interests of the children.  They did so with a view to having the issue of contact re-ventilated as soon as practicable by the appropriate legal authority, namely the Children’s Hearing.  As Lord Malcolm has commented, had the issue been resolved, one way or another, at the scheduled Hearing, it is hard to imagine that considerations of contempt would have arisen.

[2]        I agree also with the reasoning of Lord Malcolm on the subsidiary issue concerning the application of the contempt jurisdiction to interlocutors on appeal from the Children’s Hearing.  I concur in his view that there is no basis for making any finding of apparent or actual bias on the part of the sheriff.  The sheriff was also clearly aware of the requisite standard of proof.   However, there are certain concerns about the procedure adopted by the sheriff, which require additional comment.

 [3]       A complaint of disobedience to an order of a court may give rise to a finding of contempt of court; an offence sui generis (Gribben v Gribben 1976 SLT 266, LP (Emslie) at 269; HM Advocate v Airs 1975 JC 64, LJG (Emslie) at 69).  Contempt can take many forms.  Some instances may be criminal in themselves.  They can be prosecuted on summary complaint or indictment.  Others are not criminal, in which case, if the judge or sheriff has viewed the activity complained of, the court may deal with it summarily “at its own hand” (Wylie v HM Advocate 1966 SLT 149, LJG (Clyde) at 151).  Otherwise, where the contempt occurs outwith the court, the finding is usually made following upon an application by an interested party (HM Advocate v Airs (supra), LJG (Emslie) at 69; see Gordon: Criminal Law (3^rd ed) para 50.01).  If there is no subsisting process, in the Court of Session the proceedings would be by a Petition and Complaint (Maclaren: Court of Session Practice 134) and in the sheriff court by summary application (initial writ) (see the equivalent for breach of interdict, MacPhail: Sheriff Court Practice (3^rd ed) para 21.96, Encyclopaedia of Scottish Legal Styles Vol 6 no 32). 

[4]        There are many situations in which a contempt occurs during the dependency of an action.  In these, a sheriff may rightly consider it necessary to act immediately and summarily in order to vindicate his/her authority.  Such incidents will include events observed by the sheriff, such as a failure by a witness to answer questions, a witness or party appearing in court in a state of intoxication, or a person in the courtroom directing abuse at the sheriff (see generally Macdonald: Criminal Law (5^th ed) 267).  Subject to the cautionary approach advised in Kyprianou v Cyprus (2007) 44 EHRR 27, and provided the sheriff adheres to the broad guidance set out in the “naked rambler” case (Robertson v HM Advocate 2008 JC 146 (LJC (Gill) at para [83] et seq) he/she is entitled to proceed at his/her own instance (cf, however, Act of Sederunt (Contempt of Court in Civil Proceedings) 2011 (SSI No.388)).  That guidance, which states that the contemnor should be told, but need not be given written notice of, the nature of the contempt is specifically addressed to conduct observed by the sheriff in court, or at least brought to his/her attention in the course of live proceedings.

[5]        In this case, the sheriff had dealt with the appeal in her interlocutor of 24 May 2013.  There was no longer a live process before her.  What was involved thereafter was an allegation, made by the mother’s law agent (on the mother’s behalf), expressed in a letter of 6 August 2013, addressed to the second petitioner as the team manager of the Social Work Department, to the effect that there may have been a contempt of court.  This was copied to the sheriff clerk and thereby came to the notice of the sheriff.

[6]        The action taken by the sheriff thereafter proceeded at her own instance and without any form of written application, setting out the precise nature of the contempt.  The court does not consider that it is appropriate to proceed in this fashion brevi manu where the alleged contempt neither occurs in a live process nor is a physical event viewed by the sheriff.  The alleged contempt was no different in substance from one in which it is alleged that any final order ad factum praestandum made by the court in favour of a particular party has not been complied with or a final interdict granted by the court has been breached.  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.  It is primarily for the party in whose favour the order is made to do so by taking the appropriate action.  After all, especially in matters involving children, a party may decide not to employ the full rigours of the law in a situation where more flexibility may be the prudent course.

[7]        In the type of situation arising here, where the proceedings are no longer pending, and there is no alternative procedure such as application by minute (eg Ordinary Cause Rule 33.44), 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.

[8]        If the defender were to deny any contempt, he/she would have an opportunity to do so in writing through his/her lawyer in response to the averments in the writ.  This would enable the sheriff to see precisely what facts or inferences are agreed and what are disputed.  For example, in this case, there ought to have been a clear statement of when and by what action it was said a contempt arose.  Having reviewed the pleadings, the sheriff could then decide whether a proof was needed or whether the contempt was, or was not, made out upon the written pleadings (notably the defender’s stated position in print).  In many cases there will be no need for a proof (eg HM Advocate v Airs 1975 JC 64).  Although any contempt must, if disputed, be proved beyond reasonable doubt, there is, just as in a criminal cause, no need for proof if the facts are judicially admitted.  Johnston v Johnston 1996 SLT 499 is authority only for the proposition that proof is required if a material dispute of fact appears.  In this case, it is not clear what several days of proof actually achieved beyond what would have been revealed by candid written pleadings supplemented, if necessary, by ex parte submission.

[9]        Were it necessary for a decision in the case, the court would have been bound to question the legality of the procedure adopted, albeit without objection, given that the contemnors were proceeded against apparently on the basis of a copy letter and in a manner involving them leading at a proof at which there was no requirement for them to testify.

 

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 25

P462/14

Lord Justice Clerk

Lord Malcolm

Lord McGhie

OPINION OF LORD MALCOLM

in the petition of

AB and CD

Petitioners;

to the nobile officium

Act: Ellis QC; Jones Whyte

Alt: J Scott QC, McAlpine; Hughes Walker

 

27 March 2015

[10]      The petitioners, AB and CD, are senior and experienced social workers who have been found in contempt of court in respect of their failure to obey an interlocutor of the sheriff, dated 24 May 2013.  The background concerns two young boys who were taken into care following anxiety about their wellbeing.  Both children were subject to supervision requirements under section 70 of the Children (Scotland) Act 1995.  On 25 February 2013 a Children’s Hearing reduced a contact requirement concerning the children’s mother from weekly to monthly.  The mother appealed to the sheriff who, acting under her powers in section 51(5)(c) of the Act, substituted a requirement for weekly contact with each child.  In circumstances which will be detailed below, on 11 July 2013 AB suspended contact.  Shortly thereafter this decision was approved by CD, her immediate superior.  This prompted a letter from the mother’s solicitor, dated 6 August 2013, complaining of what was said to be a contempt of court on the part of the petitioners.  This letter was copied to the sheriff clerk.  The sheriff decided to fix a hearing on the question of a potential contempt.  After sundry procedure, a proof was set down with the petitioners ordained to lead.  There were no pleadings, nor any other formality about the proceedings.  The petitioners and a number of witnesses, including the children’s mother, gave evidence.  The petitioners were represented by counsel.  At the request of the court, counsel appeared on behalf of the mother on a pro bono basis.

[11]      The sheriff found that both petitioners had failed to obey the interlocutor of 24 May by not making the children available for contact with their mother from 11 July until 22 August 2013, and that they were guilty of a contempt of the authority of the court.  The sheriff imposed no penalty, but found the petitioners jointly liable in the expenses of the proceedings.  By way of a petition to the nobile officium, this court is now asked to quash that interlocutor, primarily on the basis that the proven circumstances do not amount to a contempt of court.

 

The sheriff’s findings-in-fact
[12]      The salient facts as found by the sheriff in her judgment can be summarised as follows.  After the decision of the court, AB convened a meeting with the foster carers, their liaison social worker, and the social worker who facilitated contact.  AB was of the view that she should have been allowed to give evidence before the sheriff (who decided the appeal on the papers).  She disagreed with the sheriff’s decision, believing that it would be harmful to the children.  Nevertheless, at the meeting she emphasised the importance of complying with the court’s order.  Weekly contact was reinstated.  Thereafter the carers reported a resumption of problems concerning the children’s behaviour.  They told AB that they were finding things so difficult that they might have to give up caring for the children.  AB and CD met on 2 July.  They discussed a recommendation to a Children’s Hearing, which was set down for 4 July, that contact should revert to a monthly basis.  That Children’s Hearing did not address the recommendation.  It was adjourned to a later date to allow the members of the panel to consider certain papers.  AB requested an early date for the adjourned Children’s Hearing, and it was fixed for 22 July.  Having alerted the reporter to her intentions, on 11 July AB suspended the children’s contact with their mother.  Previously AB and CD had discussed the possibility of either temporary suspension of contact, or moving the boys to other carers.  AB having embarked upon a period of leave, the duty social worker was left with the task informing the children’s mother about this decision, however there was a delay in this being done.  In the meantime, additional support was provided to the carers.  Being concerned about the risk of harm to the children flowing from the resumption of weekly contact, CD did not interfere with AB’s decision, believing that the issue would be addressed at the Children’s Hearing set down for 22 July. 

[13]      On her return from leave, AB prepared an update for the imminent Children’s Hearing.  She set out her concerns regarding weekly contact at some length.  She referred to the boys being “distressed, distraught and at times traumatised” and to the triggering of memories of past violent conduct.  The carers had been struggling with seeing the trauma inflicted upon the children.  There was real concern as to the impact on the boys, and a fear that the placement could break down.  AB wrote that it was her view “that the weekly contact could not be continued in good conscience, knowing the dire effect it has been having on both children.” 

[14]      Unfortunately the Children’s Hearing on 22 July did not address the merits of the matter.  Unexpectedly, the children’s father attended.  He wished sight of the papers and an opportunity to take legal advice.  The panel considered that it had no alternative but, once again, to continue the hearing.  A hearing was fixed for 22 August.  In the meantime AB had a meeting with the children’s mother and grandfather, and advised that contact could occur on a monthly basis.  This prompted the letter of 11 August from the mother’s solicitors to CD referred to above, which alleged a contempt of court and requested reinstatement of weekly contact.  In a letter of 13 August CD replied, explaining the problems which had been experienced after the resumption of weekly contact.  She said that the carers “were being tested to their limit in caring for these distressed little boys.”  AB’s concerns were shared by the carers’ support worker.  Moving the boys to respite would be harmful to them, thus the practice team “faced a significant professional dilemma: move the boys to respite in order to support a placement that was in significant difficulty and accept the negative impact on the boys, or take immediate steps to protect the boys from further emotional harm.”  CD continued:

“In discussion with myself and other professional partners to the children’s plans, (AB) advised (the children’s mother) that her contact with the boys would be suspended until a hearing could review the contact arrangements.  As team manager I was and continue to be fully supportive of this course of action and take responsibility for the decision that was made.  Neither I nor (AB) takes the decision of the sheriff lightly.  We are respectful of the court and aware of the gravity of the situation and the implications of our actions.  The decision was taken in response to a situation of two young children in acute and increasing distress.  Section 17 of the 1995 Act is still in existence and talks of the duty of the local authority to promote direct contact between a child and parent but having to have regard to the welfare of the child which is the paramount consideration – this is the legal basis for the decision to suspend contact (pending a hearing).”

 

[15]      On 22 August the Children’s Hearing decided that, so far as contact is concerned, the sheriff’s decision should be followed.  Surprise was expressed “that social work had failed to adhere to this.”  The panel was not satisfied that there was evidence of a direct correlation between contact and the children’s anxious behaviour.  It was “felt that a professional psychological assessment would be helpful to the next panel to assess the level of emotional impact upon the children.”  With regard to the expression of surprise, it may be relevant to note that, in the main, there was no continuity of membership of the three panels held in July and August; the exception being that one person sat on both the 22 July and 22 August panels.  Each panel involved a different reporter.

 

The sheriff’s decision
[16]      The sheriff reached the view that the social workers’ failure to comply with her decision was an interference with the administration of justice, which implied “on the face of it, a lack of respect or contempt for the order of this court” (paragraph 91).  It was proved beyond reasonable doubt that AB and CD’s behaviour was “contumacious” (stubbornly disobedient).  The sheriff found AB to be “an unimpressive witness” – and where her evidence differed from that of others, she preferred the alternative account.  The sheriff was critical of AB’s record keeping and of certain perceived mistakes as to the provisions in the 1995 Act. 

[17]      So far as the finding of contempt of court is concerned, there is an important passage in the sheriff’s judgment at paragraph 109 where she states that she “did not accept the evidence of AB in relation to the events leading to her decision to terminate contact.”  This is based upon the view that when AB contacted the reporter on 8 July to request an earlier date for the adjourned Children’s Hearing, she intimated her intention to stop contact “prior to any discussion with CD or the foster carers.”  The sheriff considers it “a remarkable coincidence” that within two working days of the hearing on 4 July, at which the children were said to be safe and well in their placement, AB was intimating an intention to terminate contact because of “a perceived danger that the placement was breaking down”.  The sheriff continues:

“We know that the placement did not break down and that notwithstanding the decision of 22 August when the frequency of contact was confirmed at once per week.  Only after termination of contact were additional supports put in place and additional funding provided to the foster carers.”

 

[18]      Counsel for the petitioners was critical of the sheriff’s approach at paragraph 109, under particular reference to the evidence of one of the foster carers.  He gave uncontested evidence, the key points of which can be summarised as follows.  The carers were devastated by the sheriff’s ruling because they knew what this would mean for the boys.  They told the social workers this at the meeting after the sheriff’s decision, when they were told that they required to comply with the new contact regime.  As contact progressed through June, the carers expressed concerns to the social workers about a dramatic regression in the boys’ behaviour.  The carers were finding it “very, very difficult” to cope with all of this.  The children were normal little boys when contact was monthly, but the carers were again having to witness distress and suffering.  “This is what we were communicating to the social workers – both myself and my wife.”  “Mainly my wife made the phone calls, but I sat in on the meetings as well.”  They had meetings with AB and also discussions on the telephone.  There was a group of child care professionals around the boys to monitor the situation, which met once a week if possible.  In the beginning of July, before the decision on the 11^th to suspend contact, he and his wife were telling AB that “we felt that we were nearly coming to the end of the placement and that we felt that we were maybe going to have to give up on the boys.”  They were making it clear that it was the contact, or the level of contact, which was causing the difficulties.

[19]      The foster carer’s evidence is wholly consistent with AB’s account, yet the sheriff does not comment upon it, nor give any reasons for implicitly rejecting it, in so far as she is rejecting AB’s explanation for the decision taken on 11 July.  Furthermore, it is difficult to reconcile the sheriff’s reasoning at this important part of her judgment with her previously expressed findings-in-fact, which have already been summarised.  There seems to be no doubt that there was concern as to the security of the placement.  At paragraph 49, the sheriff finds as follows:

“At a formal meeting with AB on 2 July 2013 CD was advised that there were concerns about the children’s behaviour and the ability of the foster carers to cope with the situation.  CD and AB discussed a recommendation to a Children’s Hearing to be held on 4 July 2013 to reduce contact.  AB did not indicate at that meeting any intention to terminate contact.”

 

The findings continue:

“[50]    On about 9 or 10 July 2013 CD had a brief discussion with AB.  They discussed temporary suspension of contact as one option in the event that the placement with foster carers broke down.  Another option discussed was to move the children to other carers for respite.  Both CD and AB were about to go on annual leave.

[51]      On 12 July 2013 CD became aware that AB had terminated contact.  She did not interfere with the decision.  She believed the termination of contact would be only until the issue was considered as a matter of urgency at the next Children’s Hearing.”

 

Subsequent findings make it clear that CD was proceeding upon the basis that the risk of harm to the children outweighed the obligation to comply with the decision on weekly contact.  Earlier, at paragraph 44, the sheriff made the following finding:

“Since the children were placed with foster carers they have had three different social workers allocated to them.  In addition the foster carers had contact with AB, a liaison social worker to support them, and a social worker who supervised contact …  At a meeting following the hearing of the appeals on 24 May 2013, the foster carers were advised that the decision of the court required to be complied with.  The foster carers advised AB that they observed disturbed behaviour in the children after the frequency of contact was increased.  Prior to 11 July 2013 the foster carers intimated to AB that they were finding the situation with the children difficult and that they may have to give up caring for them.  No additional support was offered to them between 24 May and 11 July 2013.”

 

[20]      With reference to the sheriff’s reliance upon a remark at the Children’s Hearing on 4 July to the effect that the children were safe and well in their placement, a reading of AB’s report to that panel makes it clear that there were serious concerns for the children‘s welfare arising from the resumption of weekly contact.  It was this which led to the recommendation that “contact should be of a frequency that the boys are able to get on with their daily lives without the emotional turmoil that frequent contact creates.”  Earlier in the report it was recorded that, prior to the sheriff’s decision, when contact was monthly, this:

“saw both boys thrive with no evidence of the previously observed trauma of night terrors, emotional outbursts that included hitting of female carer by one of the children, bed wetting and cries of fear in the middle of the night.  Face to face contact with their mother is, on the surface, an enjoyable experience, it is fun.  The contact is focused on the boys and mum having an enjoyable time.  However, the following two to three days is when the emotional distress emerges with highly disruptive and highly damaging behaviour that results in both boys cries for help.  Three days later boys seem back to normal only for the pattern to re-emerge following contact a few days later.  …  The contact, in the writer’s opinion, triggers memories and fears of the past to such an extent the boys consistently cry out for the security and comfort so readily available to them by the foster carers. …  The first contact when moved back to weekly led to an immediate deterioration in [one of the boys] emotional health due to high level of fear and trauma.  Enclosed are foster carer records of daily activities and the reader can see detailed accounts of trauma.  Initially, it seemed that it was only [one of the boys] who was affected, but latterly [the other boy] has evidenced similar levels of suffering.”

 

[21]      After her return from leave in mid-July, AB wrote a report for the Children’s Hearing set down for 22 July.  She reported that the carers had stated that the boys’ distress levels were continual to the point that the placement was under threat and respite carers were being considered “as both foster carers are clearly struggling with the emotional impact of witnessing daily distress and suffering (of the boys).”  AB stated that it was because of this that she, as the case manager, and after consultation with others, made the decision to stop contact.  She recorded:

“There was a discussion with the reporter and the writer advised that the foster carers could not be expected to continue to witness the continued deterioration in both boys mental health and trauma and with this in mind and following consultation with their own allocated worker a decision was made to stop contact and return to the Children’s Hearing.  [Their own allocated worker] advised that he thought the placement was under significant pressure and he had discussed the possibility of respite carers for the boys as the carers were struggling with the daily impact of watching the boys continued suffering.  The writer was of the secure view that neither of these boys would cope with the separation and/loss of their foster carers and, therefore, the decision was made to contact ceasing and referred back into court of law.”

 

The report concluded as follows:

“It is the writer’s view that the current contact arrangements are seriously undermining the children’s current and future health and, whilst acknowledging that the final decision in relation to the boys’ future lies within the legal process and the court of law, contact recommendation by local authority needs to be fully considered at this moment in time.”

 

[22]      It is clear that there were concerns as to the wellbeing of the children after the resumption of weekly contact, and that there were fears for the ability of the carers to cope with the situation.  Whether those concerns were well-founded is another matter, but that is beside the point for present purposes.  It is not easy to grasp what it was that the sheriff was not prepared to accept in relation to AB’s evidence as to the events leading to her decision to suspend contact.  The sheriff does not make any finding as to an alternative true reason or ulterior motive for AB’s decision.  Given her comment that we now know that the placement did not break down, it may be that the sheriff doubts that there was ever any real risk that the placement was under threat.  However, she does not make a finding that AB knew, or must be taken as having known this, and was therefore deliberately latching onto this matter as a pretext for the decision.  In any event, it is clear that AB was not alone in her concerns.  Furthermore, and recognising its apparent importance to her reasoning, it is difficult to understand the basis for the sheriff’s comment in paragraph 109 that there was no discussion with CD or the foster carers before AB’s conversation with the reporter on 8 July.  Everything appears to contradict this. 

[23]      In paragraph 34 the sheriff simply makes a finding that “on about 11 July AB decided to terminate the arrangements for contact by (the children’s mother) with the children.”  If the sheriff, despite her findings at paragraphs 44 and 49/50, is basing her contempt decision on disbelief of AB’s expressed reasons for her decision, detailed findings on this point as to her true motivation would be necessary.  This is of critical importance, since 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 cannot properly be categorised as a contempt of court.  It might be seen as overzealous, overcautious, or an error of judgment; but a professional judgment held in good faith based on a concern for the children’s best interests cannot be translated into evidence of the kind of conduct necessary for contempt of court. 

[24]      Had there been a formal procedure by way of minute and answers, with adjustments, perhaps the issue of motive and intention would have been focused in a manner of assistance to the sheriff.  As it was, it is clear that the sheriff was prepared to investigate and discuss a large part of the whole course of events.  For example, the sheriff was critical of AB’s failure to take action to ensure that her concerns were addressed at the hearing on 22 July.  Whatever merit there may be in such comments and criticisms, they do not bear directly on the issue of motive for the decision to stop contact.  Had the Children’s Hearing of 22 July reached a decision on the issue of contact, it is hard to conceive of any basis for even an accusation of contempt, perhaps hence the sheriff’s focus on events at the hearing and upon other peripheral matters.  The fact remains that AB had taken urgent steps to put the issue, which was pressing upon her and others, before the legally responsible body, namely the Children’s Hearing.  Had the sheriff retained jurisdiction, it would have been returned to her – but her role was over after resolution of the appeal. 

[25]      Reverting to the sheriff’s discussion at paragraph 110 and following, she criticises AB’s evidence regarding consultation with the Council’s legal department, and as to the failure to ensure that the children’s mother was advised of the decision at the earliest opportunity.  It is said that AB did not speak with CD about her decision.  On the face of it, this is contradicted by the sheriff’s earlier findings-in-fact, so perhaps the comment is aimed at a failure to discuss it with CD in advance, or to tell her immediately after the decision was taken.  It is said that AB should have initiated a face-to-face meeting with the mother, the one on 31 July having been, according to the sheriff, forced upon her by the inquiry regarding contact.  The sheriff regarded AB’s conduct towards the mother as “at best cavalier, at worst callous.”

[26]      In paragraph 113, when concluding that AB interfered with the administration of justice, the sheriff observes that the decision to terminate contact was not sanctioned by any court or other hearing before it took effect.  Undoubtedly that is true, albeit efforts were made to have the matter addressed by a Children’s Hearing at the earliest opportunity.  The sheriff observes that the mother had no opportunity to challenge the decision, presumably other than in the context of the aforesaid proceedings before the Children’s Hearing.  It is the sheriff’s opinion that AB “did not take the appropriate steps open to her to ensure that her decision was reviewed.”  In the overall context of her opinion, I understand this to be a reference to perceived failures on the part of AB to take sufficiently robust action at the panels on 4 and 22 July with a view to the merits of the contact and welfare issues being addressed.  The sheriff concludes her discussion of AB by stating that she “formed the impression that AB believed that she, and not the court, knew what was in the best interests of the children.”  This may well have been AB’s view, but, in itself, it can hardly amount to a contempt of court.

[27]      As already noted, AB’s decision was supported by her immediate superior, CD.  The sheriff discusses CD in one paragraph.  She had a much more favourable view of the manner in which CD conducted herself at the proof; for example, “she did not demur from the responsibilities of her role as practice team manager.”  However, for the sheriff it was concerning that CD was proceeding upon information given to her by AB.  At the time CD did not review the records, nor the reasons given for the court’s decision.  She did not initiate an investigation into whether it was indeed the frequency of contact which was the cause of the children’s behaviour.  The sheriff was “unimpressed by her assertion that she thought she was dealing with the condition of a supervision requirement”, though strictly, this is accurate.  (There is no doubt that CD knew that the relevant condition had been imposed by the sheriff by way of the appeal decision.)  It was noted that CD did not countermand AB’s decision until the issue of frequency of contact could be considered at the Children’s Hearing arranged for 22 July.  The sheriff concludes: “In these circumstances CD also interfered with the administration of justice.”

[28]      The decisive part of the sheriff’s judgment has already been summarised.  In it she emphasises that “social workers are in no different position from anyone else and require to comply with orders of the court, Children’s Hearing and the general law.  They have no authority to act unilaterally however strongly held their views may be.”  The sheriff states that there could be:

“… an extreme situation when a social worker may believe it unsafe to comply with the legal requirements.  There may be an occasion when to comply would place a child at immediate risk of serious harm to life or limb.  However, in my opinion, in order to maintain a fair and proportionate system it is necessary to ensure that if there is a proposal to act in conflict with an existing order, it must be scrutinised and reviewed by an appropriate body at the earliest opportunity.”

 

It is not easy to reconcile this passage with the earlier prohibition on unilateral action; but it is as well to recognise that, while of course social workers are not above the law, it does impose onerous duties upon them.  I return to this below.

 

Decision
[29]      In Muirhead v Douglas 1979 SLT (Notes) 17 it was made clear that whether a failure to obey a court order amounts to a contempt of court depends upon all the relevant facts and circumstances.  The failure is not automatically a contempt.  As Lord Cameron said at page 18, “the position and duties of the parties alleged to be in contempt are necessarily material considerations.”  There must be a deliberate lack of respect for or defiance of the authority of the court. 

[30]      When making a finding of contempt, the court should set out the basis upon which the order is made.  In the present case the sheriff’s findings do not disclose any conduct on the part of either AB or CD which, having regard to the test outlined above, can properly be categorised as a contempt of court.  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.  This is illustrated by the instructions tendered at the initial meeting.  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.  Neither AB nor CD acted without reference to the appropriate authority, namely the Children’s Hearing.  It was unfortunate that so much time elapsed before a panel addressed the substance of their concerns.  Had the panel of 22 August, or any earlier panel, agreed with their recommendation, it is hard to conceive that these proceedings would have been brought.  This highlights that, on the findings made by the sheriff, at most there was an issue as to whether the children’s distress and the consequential threat to their placement was, or was not, caused by the resumption of weekly contact.  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.

[31]      It is true that the sheriff formed an unfavourable impression of AB and expressed various criticisms of her conduct, for example as to not taking more robust action at the first two Children’s Hearings, and regarding allegedly callous behaviour towards the mother.  There is also the reference to poor record keeping.  However these, and other similar concerns, are at best secondary to the primary issue of an alleged contempt of court.  None of these various adverse comments suggest or infer the necessary contemptuous behaviour towards the sheriff and her decision.  The sheriff herself recognises that there may be circumstances when a social worker requires to take immediate and decisive action on her own account.

[32]      For the mother, counsel hinted at some alternative motive flowing from the parallel permanence order proceedings.  There is no suggestion of this in the sheriff’s decision, and it cannot be a basis for an adverse decision by this court.  Counsel also equiparated AB and CD with a parent using a child to fight an agenda involving the other parent.  However, there is nothing in the case which allows such an analogy.  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. 

[33]      The discussion so far has concentrated on AB, and if she is to be exonerated, the same must follow for her superior, CD.  There are no findings and no reasoning relating to CD which could support a finding of contempt against her.  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.

[34]      There is no need for a decision on the other matters raised on behalf of the petitioners, however I shall comment on them briefly.  It was submitted that since the sheriff’s decision simply addressed the contact provision in a supervision requirement imposed by the Children’s Hearing, there was no scope for any breach of it invoking the court’s contempt jurisdiction.  It was not to be treated as an order of the court.  Linked to this, there was a submission that the social workers had a reasonable and honest belief that they were dealing with a Children’s Hearing order, not a decision of the sheriff, and that this was a complete defence.  In my view the sheriff was correct to reject these submissions.  The fact is that weekly contact was imposed by the sheriff.  The petitioners were fully aware of that.  It follows that the sheriff retained a jurisdiction to deal with any conduct linked to her decision which could properly be characterised as a contemptuous affront to the authority of the court.

[35]      Counsel for the petitioners also relied upon a submission that certain conduct of the sheriff, most notably her lengthy questioning of AB, raised questions as to her impartiality, and as to the fairness of the proceedings.  In my view there is no merit in this complaint.  I also reject the submission that the sheriff did not appreciate that the standard of proof of a contempt is proof beyond reasonable doubt.  It is clear from her judgment that she was fully aware of this.  Finally, I wish to associate myself with the observations of his Lordship in the chair as to the proper procedures to be adopted in matters of this kind.

 

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 25

P462/14

Lord Justice Clerk

Lord Malcolm

Lord McGhie

OPINION OF LORD McGHIE

in the petition of

AB and CD

Petitioners;

to the nobile officium

Act: Ellis QC; Jones Whyte

Alt: J Scott QC, McAlpine; Hughes Walker

 

27 March 2015

[36]      I have had the benefit of being able to consider, in draft, the Opinions of my colleagues.  I agree with the views expressed.  There is nothing I need to add.   I am satisfied that the conduct complained of did not amount to contempt and that the decision of the sheriff falls to be quashed.