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Care or Contempt?


Care or Contempt?

On 27 March 2015 two social workers previously found in contempt of Court for failing to allow contact between a mother and her children had their appeal allowed by the Inner House of the Court of Session.


In December 2013 the social workers, employed by City of Edinburgh Council, were found to be in contempt of Court for failing to allow contact to take place between a mother and her two children. Contact was stopped by the social workers despite there being an order for contact made by a Sheriff at Edinburgh Sheriff Court.

The facts of the case leading up to the finding of contempt against the social workers are not entirely uncommon. The children concerned had been accommodated by the local authority due to concerns for their welfare. The case was being considered by a Children's Panel. The children were living out with the care of their mother, and contact between the children and their mother was set by the Children's Panel, and supervised by social workers.

In this case, the Panel had made a decision in February 2013 to reduce the contact between the mother and her children, from two hours once per week to two hours once per month. This was on the basis that it had been reported to the Panel that the children were demonstrating more challenging behaviour around the time of contact, to the point that their foster placement was at risk. The mother appealed to the Sheriff Court against that decision. The Sheriff who heard the case was satisfied that the Panel's decision to reduce contact was not justified, and contact was reinstated at two hours once per week. This contact took place on several dates between June and July 2013, however contact did not take place on a number of other dates between June and August. The decisions not to allow contact were taken by social workers, who had made it clear they did not agree with the Sheriff's earlier decision to reinstate a higher level of contact. In early August, Solicitors for the mother provided a copy letter to Edinburgh Sheriff Court which had been sent to the social work department, alleging that the Court order had been breached by the social workers and that they were therefore in contempt of Court.

In this case, the social workers were found to have obstructed the right of the mother to exercise contact with her children. Contact did not take place from 8 July until 22 August, with the exception of one date. The Sheriff decided that the concerns that the social workers had in relation to contact were not sufficient to allow them to unilaterally stop contact. There were other measures they could have taken to deal with the matter through proper channels. These proper channels were not utilised. The social workers were found in contempt of Court. No punishment was levied against them, but they were found liable for the expenses of the action. It was felt by the Court that the finding against them would already have serious implications, such as an investigation into the conduct of the social workers by the Scottish Social Services Council, and therefore no other punishment was required.

The social workers appealed to the Court of Session against the finding of contempt. On 27 March 2015 unanimously decided that the Sheriff at Edinburgh Sheriff Court had made an error in finding the social workers in contempt of Court. The Judges did not feel that the social workers had acted with a "contemptuous affront to the dignity and authority of the court". The Judges felt that they had been acting in accordance with their duty to safeguard the welfare of the children, and had reacted to the situation as it developed. The Judges found that the social workers always referred to the decisions of Children's Panels and to the decision of the Sheriff to award a higher level of contact, and therefore their decision to stop contact was not simply in defiance of the Court, but based on what they believed was best for the children at the time.

This case demonstrates the seriousness with which the Courts treat allegations of contempt of Court, not only for private individuals, but also those acting within their employment. At the time the decision was made to stop contact between the mother and her children was made, a finding of contempt of Court was probably far from the minds of the social workers. However, what may have seemed like a simple decision at the time led to a significant finding in law against them, as well as a significant finding of expenses. That finding has since been overturned, demonstrating that those working in social work may be able to act out with the order of a Court, if they can demonstrate that they are doing so in the best interests of the child. This may well have serious implications for parents relying on the decision of a Court concerning contact with their child. It remains however that any order made by a Court, despite whether or not parties agree with it, should be adhered to. If you feel that a decision has been made in error, or that a decision was not justified, there are formal procedures through which that decision can be challenged.

Jenny Strachan is a Solicitor in Dispute Resolution and Claims. If you have any questions about the content of this article, or require any advice in relation to Children's Panels, contempt of Court, or any other aspect of family or criminal law, please contact Jenny on the details below.

Posted by Jenny Strachan

Solicitor

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