Sheriffdom of Lothian and Borders at Edinburgh
Judgement
by
Sheriff Kathrine EC Mackie
In proceedings to determine whether CM and GL, Social Workers, Children's and Families Department City of Edinburgh Council are in Contempt of Court
B520/13 & B521/13
Edinburgh 16th December 2013
The Sheriff, having considered the cause, Finds that CM and GL have failed to obtemper the interlocutors of 24th May 2013 by not making the children AP and CP available for contact with their mother, AT, from 11th July 2013 until 22nd August 2013; Finds in these circumstances that CM and GL are guilty of a contempt of the authority of this court; Imposes no penalty therefor; Finds CM and GL jointly liable in the expenses of the proceedings for contempt of court in so far as not dealt with, allows and account to be lodged and when lodged remits same to the Auditor of Court to tax and to report.
NOTE
HISTORY
[1]. On 13th April 2012 grounds of referral were established, without evidence, in terms of section 52(2)(c) of the Children (Scotland) Act 1995 (hereinafter "the 1995 Act") in respect of the children, AP and CP. A Supervision Requirement whereby the children were to reside with foster carers was made on 27th April 2012 with conditions that the children have no contact with their father, CP Snr, and contact with their mother, AT, a minimum of twice per week, supervised by the "Social Work Department". The children were initially accommodated on about 16th February 2012 on a voluntary basis. The following day, after withdrawal of consent, an application was made for a Child Protection Order, which was granted. Between about 17th February and 27th April 2012 the children were accommodated separately. By 27th April 2012 the children had moved to reside together with their current carers.
[2]. The Children's Hearing observed on 27th April 2012 that contact with AT was "going well" and that she had been "very mature in accepting feedback and making changes as advised". Contact with AT was initially for one hour twice per week. It was envisaged that this would allow for flexibility in working with the social work plan. Subsequently, by informal agreement amongst all parties, contact was changed to two hours once per week.
[3]. On 25th February 2013 a Children's Hearing, requested by the Local Authority in terms of section 73(4) of the 1995 Act, attended inter alia by CM, reduced contact between AT and the children to two hours once per month. The children were said to present more challenging behaviour following contact and to require reassurance. Weekly contact was said to be traumatising the children and a reduction of contact was in their best interests.
[4]. AT presented appeals against the decisions of the Children's Hearing in terms of section 51(1) of the 1995 Act. After sundry procedure the appeals were heard on 24th May 2013. I determined that it was not necessary to examine the Principal Reporter, to hear evidence from the authors of any reports lodged or to call for any further reports. Following hearing submissions and consideration of all the documents lodged, many of which had not been available to the Children's Hearing, I was satisfied that the decisions were not justified in all the circumstances of the cases and allowed the appeals. I also substituted for the disposals by the Children's Hearing, requirements, which could be imposed by them under section 70 of the 1995 Act, namely, that AT "be 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". Notes detailing the reasons for my decisions were attached to the interlocutors pronounced. No appeals were marked against my decisions.
[5]. The present proceedings commenced following receipt by the court of a copy of a letter dated 6th August 2013 from Edinburgh Law Solicitors on behalf of AT addressed to the Social Work Department the terms of which suggested that a potential contempt of court may have occurred. The history of these proceedings is narrated in a Note annexed to the interlocutor of 26th August 2013. In short, at a hearing on 16th August 2013 attended by CM and GL while admitting that they had failed to obtemper the terms of the interlocutor of 24th May 2013 in relation to the exercise of contact by AT with the children CM and GL denied that they had done so wilfully. A diet of proof was fixed to take place on 21st August 2013. At that diet Counsel appeared on behalf of the City of Edinburgh Council. Counsel's opposed motion to dismiss these proceedings as incompetent was refused. Thereafter it being acknowledged that they were not the alleged contemnors either directly or vicariously the City of Edinburgh Council withdrew from the proceedings. The diet of proof was adjourned until 4th September 2013 to allow CM and GL to obtain independent legal advice and representation. On 4th September the diet of proof was further adjourned until 23rd September 2013 to allow CM and GL's representative further time to prepare.
[6]. On 23rd September 2013 CM and GL were represented by Mr Ellis QC. He intimated an intention to submit that these proceedings were incompetent although he was aware that such a submission had been made previously, albeit not on behalf of CM and GL. He also tendered a lengthy explanation of their actings in the hope that by doing so proof might be rendered unnecessary. Mr McAlpine, Advocate, who appeared to facilitate the taking of evidence on behalf of the court, and on behalf of AT, submitted that in the absence of any admissions and in view of the standard of proof as set out in Johnston-v-Johnston 1996 SLT 499 the question whether there had been wilful contempt of court could not be determined on the basis of ex parte statements.
[7]. The issue for the court was to determine whether there had been contempt of the interlocutors of 24th May 2013 and if so whether such contempt was wilful. Although it had been acknowledged on 16th August 2013 that CM and GL had failed to obtemper the terms of the interlocutors it was not accepted that such failure was a wilful contempt of this court. Accordingly, I agreed with Mr McAlpine that the issue could not be determined on the basis of ex parte statements and that evidence would require to be led.
Competence of Proceedings
[8]. Although Mr Ellis did not address the issue of competence until the conclusion of the evidence since it is properly a preliminary point it is appropriate that I deal with this before considering the evidence.
[9]. Mr Ellis repeated, at least in part, the submission made by Miss Brabender when she appeared, apparently erroneously, on behalf of the City of Edinburgh Council. He reviewed the statutory framework of the 1995 Act in relation to disposals by a Children's Hearing. Section 70 of the 1995 Act provided for the making of a supervision requirement, which, in terms of subsection (3), may require the child to reside in a particular place and comply with any condition. In terms of subsection (3A), for the purpose of enabling the child to comply with the requirement, duties may be imposed upon the Local Authority. He contended that there was no duty upon the Local Authority unless and until the Children's Hearing imposed any.
[10]. Section 51 provided for appeals against decisions of a Children's Hearing. In terms of subsection (5) where the Sheriff is satisfied that the decision of the Children's Hearing was not justified he shall allow the appeal and may inter alia substitute for the disposal by the Children's Hearing any requirement which could be imposed by them. Subsection (6) provides that where a sheriff imposes such a requirement, "that requirement shall for the purposes of this Act, except of this section, be treated as a disposal by the children's hearing". Mr Ellis contended that such provision was critical and meant that there was no peremptory order of this court. By the interlocutors of 24th May 2013 the Local Authority were not required to do anything. The Act did not regard such a decision of the Sheriff as an order that would attract the inherent jurisdiction of the court. Just because a Sheriff had made the decision did not mean it was a decision of the court.
[11]. Mr Ellis accepted that if the decision of the court related to an action proceeding in the court then there would be jurisdiction to deal with contempt. However, in this case what had been appealed to this court was the issue of contact. Allowing the appeals did not impose any peremptory order. The only active part of the decision was where there was a substitution of the decision of the Children's Hearing. That had to be treated as a disposal by the Children's Hearing in order to fit into the statutory procedure. The decision had no force but for the provisions of section 71 of the 1995 Act.
[12]. In the event that a Local Authority may not be complying with any duty imposed upon them Parliament had provided in section 71A of the 1995 Act a procedure for enforcement. The procedure would be initiated by the Children's Hearing. An opportunity would be given to the Local Authority to comply, failing which, an application would be made to the Sheriff Principal for a peremptory order. Mr Ellis was not aware of any example of the procedure having been invoked.
[13]. Mr Ellis also drew support for his submission that the decision of the Sheriff which is substituted for the disposal of the Children's Hearing is not regarded in the 1995 Act as an order of the Sheriff from the power given to the Children's Hearing in section 73 to vary conditions without recourse to the Sheriff.
[14]. Mr Ellis referred to Macphail on Sheriff Court Practice 3rd Edition paras 218 and 219, McInnes and Fairley Contempt of Court in Scotland page 2C, the Phillimore Report (1974) Cmnd Report 5794, Butterworths The Law of Contempt 4th Edition paras 13.1, 13.2 and 13.4 and to the definition of "court" in the Contempt of Court Act 1981 section 19.
[15]. In reply Mr McAlpine submitted that the issue of competence had already been considered. He acknowledged that the argument had been advanced on behalf of the Local Authority and not the alleged contemnors. However, the issue had been dealt with in my Note attached to the interlocutor of 26th August 2013.
[16]. He further submitted that on 24th May 2013 the Sheriff had made orders and interlocutors had been signed and carried the authority of the court. In terms of section 51(6) of the 1995 Act the order was "treated as a disposal by the Children's Hearing". The wording of the provision was important. Subsection (6) provided "Where a sheriff imposes a requirement under subsection (5)(c)(iii) above, that requirement shall for the purposes of this Act, except of this section, be treated as a disposal by the children's hearing." The requirement is treated as a disposal by the Children's Hearing only for the purposes of the Act and not for all purposes. A right of appeal lies from the decision of the Sheriff to the Sheriff Principal or Court of Session. In order that the provisions of the 1995 Act have efficacy the decision of the Sheriff in substitution for the disposal of the Children's Hearing requires to be treated as such a disposal.
[17]. Mr McAlpine submitted that these proceedings were not under the 1995 Act. They were at common law. The order that had been made by the court had not been obtempered. The court was entitled to deal with that failure in the exercise of its inherent jurisdiction.
Discussion
[18]. While Mr Ellis may have elaborated upon the argument presented by Miss Brabender on behalf of the City of Edinburgh Council both submitted that these proceedings were incompetent. In short, it was submitted that this was so because in the interlocutors of 24th May 2013 the court had substituted for the disposal of the Children's Hearing a requirement that could have been imposed under section 70 of the 1995 Act. In these circumstances the requirement is treated as a disposal of the Children's Hearing. The interlocutors did not amount to a peremptory order upon the Local Authority and if the Local Authority failed to comply with any duty imposed by a Children's Hearing there was procedure in the 1995 Act for enforcement.
[19]. I considered this submission on 21st August 2013 and refused the motion made then to dismiss the proceedings for want of competence. It may be that the argument is now presented on behalf of different parties. However, I was not persuaded, despite Mr Ellis's detailed and eloquent submissions, that the argument was different to that which I had already considered. There does not appear to me to be any basis upon which to review my previous decision.
[20]. In appeals under section 51 of the 1995 Act where the Sheriff is satisfied that the decision of the Children's Hearing was not justified in all the circumstances he shall allow the appeals and, in terms of subsection (5)(c), may, as he thinks fit, (i) remit to the Children's Hearing for reconsideration, (ii) discharge the child from further hearing or other proceedings or (iii) substitute for the disposal by the Children's Hearing any requirement which could be imposed under section 70 of the 1995 Act. Subsection (6) of the 1995 Act provided that "Where a sheriff imposes a requirement under subsection (5)(c)(iii) above, that requirement shall for the purposes of this Act, except of this section, be treated as a disposal by the children's hearing.". In my opinion the terms of subsection (6) do not mean that there is no decision of the Sheriff or of the court. Had Parliament so intended, in my view, a different form of words would have been employed. I agree with Mr McAlpine that the wording of subsection (6) is intended to give efficacy to the purposes of the 1995 Act. It is necessary that there be some provision which allows the case, following appeal, to be returned to the Children's Hearing procedure, unless in terms of subsection (5)(c)(ii) the child is discharged from further proceedings. In terms of subsection (4) where the appeal fails the decision of the Children's Hearing is confirmed. Where the appeal is allowed, in terms of subsection (5)(c)(i) the case is remitted back to the Children's Hearing for reconsideration. Without a provision such as subsection (6) where a Sheriff substitutes for the disposal by a Children's Hearing a requirement which could be imposed under section 70 there would be no means whereby the purposes of the 1995 Act could be fulfilled. The purposes of the 1995 Act in terms of the long title are "to reform the law of Scotland relating to children, to the adoption of children and to young persons who as children have been looked after by a local authority; to make new provision as respects the relationship between parent and child and guardian and child in the law of Scotland; to make provision as respects residential establishments for children and certain other residential establishments; and for connected purposes.". Chapter 3 of the 1995 Act dealt with provisions relating to children requiring compulsory measures of supervision. Section 70 dealt with the disposal by a Children's Hearing and the making of a supervision requirement, which may contain conditions such as set out in subsection (5). Such conditions include the regulation of contact with the child. Section 73 of the 1995 Act provided for the duration and review of a supervision requirement. Subsection (6) provided for the child or relevant person requiring a review at any time at least three months after the date of the making of the requirement or continuation or variation of it. Accordingly the Sheriff's decision requires to be "treated as a disposal by the Children's Hearing" so that the purposes of the 1995 Act can have effect and in particular the provisions relating to duration and review of the requirement.
[21]. It is, in my opinion, important to note that the Sheriff's decision is only "treated" as a disposal of the Children's Hearing "for the purposes of the Act". This does not, in my opinion, mean that the decision made by the Sheriff is not and does not remain a decision of the court. Were the decision to be appealed either to the Sheriff Principal or the Court of Session it is the decision of the Sheriff that would be so appealed and not a decision of a Children's Hearing.
[22]. While section 71 of the 1995 Act imposed upon a Local Authority a duty to give effect to a supervision requirement and section 71A provided for enforcement of that duty the issue in these proceedings is not whether there has been a breach of statutory duty by the Local Authority. By the withdrawal from these proceedings of the City of Edinburgh Council, the relevant Local Authority, and the absence of any appeal against my decision of 21st August 2013 it is to be inferred that it has been accepted by them that no issue of a breach of statutory duty arises in these proceedings.
Decision
[23]. In my opinion the issue in these proceedings is whether the conduct of CM and GL challenged or affronted the authority of this court. The court has inherent and necessary jurisdiction to take effective action to vindicate its authority and preserve the administration of justice. In the interlocutors of 24th May 2013 AT was found entitled to contact with the children, "such contact to be supervised by the Social Work Department". The children are accommodated by the Local Authority in terms of the supervision requirement made by the Children's Hearing on 27th April 2012. The Local Authority to that extent is in loco parentis. The whereabouts of the children are not disclosed. The Social Work Department, as they are commonly understood whatever rebranding may have occurred and as they are referred by the Children's Hearing, requires to facilitate the exercise of contact by AT with the children in the same way as any parent with care where an absent parent has been found entitled to contact in proceedings under section 11 of the 1995 Act. Where someone, whether a member of the Social Work Department or a parent with care, acts in such a way as to prevent the contact to which another party has been found entitled, in my opinion, the question of contempt of court arises.
Evidence
[24]. Evidence was led from CM, GL, AE, the children's male foster carer, Christine Rankin, Patricia Pattison and Karen Scott, all Reporters, AT and DB, her grandfather. I found the following facts admitted or proved:-
[25]. CM is aged 55 years. She is a Team Leader in the Children's and Families department of the City of Edinburgh Council. She has been a social worker with children and families for about 25 years. She has responsibility for about 8 social workers in her team. She is supervised by GL, Neighbourhood Manager. Formal meetings are held between them every three weeks or so. Informal discussion can take place at any time.
[26]. In about May 2012 GM became the allocated social worker to the children. CM supervised GM as a member of her team. Following GM's departure in about June 2013 another social worker MH became involved. From June 2013 CM wrote reports on the circumstances of the children for Children's Hearings.
[27]. CM was aware of the appeals by AT against the decision of the Children's Hearing on 25th February 2013. She knew that the appeals were heard by the court on 24th May 2013. She knew of the decision of the court following the hearing and contacted the children's foster carers that afternoon to advise them of the decision. She received from Miss Rankin, Reporter, an email dated 27th May 2013 in which the outcome of the appeals were intimated. At the same time she received information from Miss Rankin about the Sheriff's reasons for her decision and criticisms, which had been made by the Sheriff.
[28]. CM arranged a meeting during the week following the hearing of the appeals with the children's foster carers, their liaison social worker and the social worker who facilitated contact. At that meeting the implications of the outcome of the appeals were discussed. CM emphasised the importance of adhering to the decision of the court. She also emphasised the need for the foster carers to continue to keep records relating to the children.
[29]. CM disagreed with the decision of the court. She believed that the court had reached the wrong decision about what was in the best interests of the children. Although not required so to do she attended court on 24th May 2013. She was aggrieved that she was not called to give evidence about the children's circumstances. She believed that an increase in the frequency of contact would cause the children, and in particular CP, to display disturbed behaviour.
[30]. Contact as instructed by the court commenced on about 3rd June 2013. Thereafter contact was arranged to take place on 7th, 14th, 21st and 24th June, 1st and 8th July all 2013. Contact did not take place on 14th June or 8th July. Thereafter, except for one occasion on 5th August 2013, no contact was arranged until after a Children's Hearing on 22nd August 2013.
[31]. On about 27th June 2013 CM prepared reports relating to the children for a Children's Hearing arranged to take place on 4th July 2013. The Children's Hearing was arranged to obtain advice about the proposed permanency plans for the children. In her report CM made observations about the exercise of contact, the purpose of contact and recommended that the frequency of contact should be monthly instead of weekly. She also expressed the desire to be given the opportunity to give evidence in any future appeals by AT.
[32]. CM, together with MH the children's social worker, attended the Children's Hearing on 4th July 2013. At the hearing papers were produced which had been available to the court but had not been made available previously to the Children's Hearing. The hearing was adjourned to a later date to allow panel members an opportunity to consider the papers. During the hearing enquiry was made about the welfare of the children. The Children's Hearing was advised by CM that both children, while intermittently exhibiting signs of stress and disturbance, were safe and well in their placement. CM could have but did not request that a variation of the frequency of contact be considered. CM could have but did not request that a place of safety warrant be considered.
[33]. CM was not aware until advised by GL, after commencement of these proceedings, that a place of safety warrant could be requested in the circumstances of these cases.
[34]. On about 11th July 2013 CM decided to terminate the arrangements for contact by AT with the children. She did not seek or obtain any legal advice before or after deciding so to do. She did not discuss with GL her intention to terminate the arrangements before taking the decision so to do. CM was on leave at the time she made the decision. She delegated to a duty social worker the task of contacting AT by telephone to inform her of the decision. She also delegated to that person the task of informing GL of her decision. Thereafter she switched off her telephone and could not be contacted until she returned to work the following Wednesday. Contact was not made with AT until 15th July 2013 when contact was due to take place.
[35]. CM was aware from the email dated 27th May 2013 from Miss Rankin that AT's solicitors had requested that they be copied in on all correspondence with AT. AT's solicitors were not advised of the decision to terminate the arrangements for contact. AT was not informed of the decision until she contacted MH on 15th July 2013 after she had arrived for contact with the children.
[36]. On 8th July 2013 CM telephoned Miss Rankin to discuss arrangements for the adjourned hearing. A hearing had been arranged to take place on 25th July 2013. In that conversation CM expressed her concern about the children and the foster carers ability to cope with them and intimated an intention to terminate contact. At the request of CM the hearing was brought forward to 22nd July 2013. On 11th July 2013 CM telephoned Miss Rankin to advise that she would present an updated report for the hearing.
[37]. CM prepared a report dated 16th July 2013. She attended the hearing on 22nd July 2013. The children's father, CP senior, attended the hearing. He had not been provided with any papers. He wished sight of the papers and an opportunity to take legal advice. The Children's Hearing decided to adjourn the hearing to allow him to do so. CM could have but did not request that a variation of the frequency of contact by AT be considered. CM could have but did not request that a place of safety warrant be considered.
[38]. As at 22nd July 2013 the children's placement with the foster carers was secure.
[39]. No request was made for an early date for the continued hearing. CM was on leave at the beginning of August.
[40]. On about 29th July 2013 AT telephoned CM to enquire about contact with the children. CM advised her that contact would take place monthly. AT was invited to a meeting so that the matter could be discussed. AT, together with her grandfather, attended a meeting with CM on 31st July 2013. The meeting was brief. CM was uncomfortable about AT and her grandfather taking notes. CM expressed her view that contact with AT triggered for the children memories of violent incidents and that they were traumatised by it. AT attempted without success to express a contrary view. AT reminded CM of the decision by the court. CM expressed the view that the court had not made the right decision, had not put the interests of the children first and her conscience was clear. AT became distressed and left the meeting.
[41]. On 22nd August 2013 a Children's Hearing took place. CM and GL attended the hearing. The Children's Hearing decided to continue the supervision requirement with a condition that the children have contact with AT once per week for 2 hours to be supervised by the City of Edinburgh Council. It was also decided not to support the proposed applications for Permanence Orders.
[42]. The hearing was given no indication that the children's placement was failing to meet their needs. The hearing considered conflicting views about the impact of contact on the children. The panel considered from the foster carers a daily account of the children's presentation. They did not consider that the information produced constituted evidence of a direct correlation between contact and subsequent anxious behaviour characterised by social work and foster carers as trauma. The panel requested that a professional psychological assessment of the children be available at a future review of the supervision requirement. The decision of the Children's Hearing mirrored the decision of the court made on 24th May 2013. No appeal against the decision of the Children's Hearing has been marked.
[43]. AE, together with his wife, is the children's foster carer. He is aged 49 years. He and his wife have three adult children and one grandchild. He and his wife have been involved in working with children, in nurseries, schools, children's centres and schools for children with special needs, for about 20 years. They have not acted as foster carers until the children were placed with them. The children have resided with them for about eighteen months.
[44]. 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 CM, a liaison social worker to support them and a social worker who supervised contact with AT. At a meeting following the hearing of the appeals on 24th May 2013 the foster carers were advised that the decision of the court required to be complied with. The foster carers advised CM that they observed disturbed behaviour in the children after the frequency of contact was increased. Prior to 11th July 2013 the foster carers intimated to CM 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 24th May and 11th July 2013.
[45]. After contact was terminated on 11th July 2013 weekly meetings were set up with the children's nursery head teacher, health visitor and social worker to support the foster carers. Additional funding was given to the foster carers to assist with providing activities for the children, and in particular AP.
[46]. The children continue to reside with AE and his wife. The placement has not broken down.
[47]. GL is aged 41 years. She is a Practice Team Manager in the Department of Children's and Families of the City of Edinburgh Council. She has been a social worker for about 27 years principally working with children and families. At present she has responsibility for managing six Team Leaders and their respective teams. She sits on the MAPPA North Group and the MARAC being piloted in south and east Edinburgh.
[48]. GL became involved with the children in about 2010 when the case was allocated to GW, a social worker in her team. At that time the children were in the care of AT. When GW left the case was allocated to GM who was also in GL's team. Until summer 2013 GL had met only AT's grandparents.
[49]. GL was made aware in discussions with CM of the outcome of the appeals on 24th May 2013. Following the appeals weekly contact was arranged from 3rd June 2013. At a formal meeting with CM on 2nd July 2013 GL was advised that there were concerns about the children's behaviour and the ability of the foster carers to cope with the situation. GL and CM discussed a recommendation to a Children's Hearing to be held on 4th July 2013 to reduce contact. CM did not indicate at that meeting any intention to terminate contact.
[50]. On about 9th or 10th July 2013 GL had a brief discussion with CM. They discussed temporary suspension of contact as one option in the event that the placement with the foster carers broke down. Another option discussed was to move the children to other carers for respite. Both GL and CM were about to go on annual leave.
[51]. On 12th July 2013 GL became aware that CM 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.
[52]. GL was aware that the decision to terminate contact had not been communicated to AT by telephone. She did not consider any other means of communicating with AT.
[53]. GL was absent on leave between 22nd July and 12th August 2013. On her return she received a letter dated 6th August 2013 from AT's solicitors Edinburgh Law. She replied by letter dated 13th August 2013. Before doing so she obtained information from SWIFT records and an email sent to her by CM in which CM summarised the position in a number of cases. She also obtained advice from the Legal Department of the City of Edinburgh Council.
[54]. GL considered that the risk of harm to the children outweighed any obligation to comply with the condition of contact. Taking a decision not to implement a condition of a supervision requirement is not unheard of. GL was aware that not to implement such a condition was unlawful.
[55]. In forming her views of the circumstances of the children GL accepted and relied upon information from CM. She did not read any records, the email dated 27th May 2013 from the Reporter or the Notes by the Sheriff attached to the interlocutors of 24th May 2013 until after the commencement of these proceedings. In her discussions with CM, GL was made aware that concerns had been expressed about the evidential basis for the assertion that the children's behaviour was directly linked to contact with AT. No steps were taken to investigate reasons for the behaviour.
[56]. Following the Children's Hearing on 22nd August 2013 an independent psychological assessment of the children was instructed. Children's and Families Social Workers will instruct an independent psychological assessment where the assessment by social workers is insufficient to satisfy the court or Children's Hearing. No such assessment was considered following the appeals on 24th May 2013.
[57]. Applications for funding to provide additional supports to foster carers would be made to GL by CM. No such application was made between 24th May and 11th July 2013.
[58]. Case records relating to a child may not contain detailed notes of each conversation or other communications. A summary of events may be prepared at a later date. On 5th August 2013 CM prepared a summary of events in relation to the termination of contact. That summary did not contain any information about a decision to arrange contact on 5th August 2013 or how that was communicated to AT. Entries dated 12th and 15th July 2013 from the case records relating to AP were produced disclosing an account of the duty social worker's attempts to contact AT and AT's conversation with MH.
[59]. Christine Rankin has been a Children's Reporter for about 14 years. On about 18th June 2013 Miss Rankin had discussions with GM, the children's social worker, about arranging a hearing to obtain advice from the Children's Hearing on plans for permanency. On 8th July 2013 CM telephoned her to request an early date for the Children's Hearing continued from 4th July 2013. A hearing was arranged to take place on 22nd July 2013 being the earliest date available. In that conversation CM indicated an intention to terminate contact until the Children's Hearing. Miss Rankin did not offer CM any advice about taking such a decision. She suggested to CM that she contact the legal department of the City of Edinburgh Council to discuss her intentions. CM did not do so. CM telephoned Miss Rankin on 11th July 2013. She informed her of concerns about the children and the foster carers. She was the Reporter at the Children's Hearing on 22nd August 2013.
[60]. At a Children's Hearing even where the hearing required to be continued for any reason and no substantive decision was to be made a social worker could raise any concerns about the circumstances of the children.
[61]. Patricia Pattison has been a Children's Reporter for about 10 years. She was the Reporter at the Children's Hearing on 4th July 2013. The hearing required to be continued to a later date to consider the volume of papers produced. The panel enquired about the circumstances of the children. A discussion took place between CM and a panel member about difficulties around contact and the need to address them. CM advised the panel that she had not been called to give evidence in the appeals and that the court were not fully aware of the children's circumstances. No motion was made by CM to consider changing the children's situation on an interim basis.
[62]. Karen Scott was admitted as a Solicitor in 1995. She has been a Children's Reporter for about 6 years. She was the Reporter at the Children's Hearing on 25th February 2013 when a decision was made to reduce the frequency of contact between the children and AT. She was also the Reporter at the Children's Hearing on 22nd July 2013. The children's father, CP senior, attended the hearing. The hearing was continued to allow him to receive papers. Miss Scott did not advise or say anything which would give CM the impression that she could not raise the issue of contact. It is not the role of the Reporter to advise either the Children's Hearing or Social Workers. Miss Scott was surprised that CM did not raise the issue of contact and request that the panel consider the circumstances of the children.
[63]. Members of Children's Hearings receive training. They are aware that they require to have regard to the welfare of the children and to make enquiries about the children's circumstances at any hearing.
[64]. AT is aged 29 years. She is the mother of the children. Since about June 2013 she has been using mobile telephone number ending 6286. Her previous number ended 5435. Telephone numbers ending 4552 and 7592 were previous numbers used by her. If her number changed she supplied the new number to social workers. She requested that she be contacted by telephone or text message. She explained to social workers that she could not afford to collect messages left on voicemail. In about July 2013 her mobile telephone required to be repaired. On 13th July 2013 she sent a text to MH to confirm that her telephone was working again.
[65]. On 8th July 2013 contact with the children did not take place as arranged. There was confusion about the venue. AT left a note for MH to that effect and to advise that her telephone would be available from the following Wednesday. At about 9.05am on 15th July 2013 she received a telephone call from MH to advise her that contact had been terminated until further notice. She was distressed. She contacted her solicitor. After the telephone call from MH she received no contact from anyone to explain what was happening.
[66]. She attended the Children's Hearing on 22nd July 2013. Before leaving the hearing she enquired what was happening about contact. CM was present. The Reporter informed her that contact would remain the same. On about 29th July 2013 she telephoned CM to enquire what was happening about contact. She was asked to attend a meeting on 31st July 2013. She was distressed by CM's apparent intransigence and left the meeting.
[67]. At the Children's Hearing on 4th July 2013 CM told AT that the Sheriff had not done her job properly and had not put the children's interests first.
[68]. AT received a telephone call from MH to inform her that contact would take place on 5th August 2013 at 3pm.
[69]. DB is aged 71 years. He is AT's grandfather. He accompanied AT to the meeting with CM on 31st July 2013. He had met CM on previous occasions. CM indicated that she was not taking cognisance of the Sheriff's decision. CM was not persuaded by anything said by AT to change her position.
Submissions on behalf of CM and GL
[70]. Mr Ellis submitted that before a finding of contempt could be made the court required to be satisfied, beyond reasonable doubt, that there has been wilful conduct which demonstrates a lack of respect for this court. I was referred to Macphail 3rd Edition para 20.21 and to Beggs-v-Scottish Ministers 2005 SC 342 in respect of what was necessary to demonstrate intention. It was accepted that both CM and GL made a deliberate decision not to facilitate contact. However, they believed that they were dealing with a condition of a supervision requirement. Accordingly no inference can be drawn that they were showing disrespect to this court. The position was at least unclear and it cannot be said that they were wrong in their belief or that there was no reasonable basis for it.
[71]. CM and GL had no intention to defy the legal process. They acted only in the best interests of the children. CM arranged for the matter to call before a Children's Hearing as soon as possible. She spoke to two legally qualified persons. She did not get clear advice. She mentioned to a Reporter her intention to terminate contact and was not told that she could not do so. She did not act contrary to legal advice which said this is an order of the court that you cannot disobey.
[72]. It was suggested it was important to bear in mind that if things had gone to plan only one contact on 15th July 2013 would have been affected. CM had been unable to obtain an earlier hearing date. Urgent variation of the condition of contact was not considered at the Children's Hearings on 4th or 22nd July 2013. I was invited to accept CM's evidence about why she thought she was unable so to do. It was submitted that it was not surprising that despite her experience CM was unaware of the theoretical possibility of seeking a place of safety warrant. It would have been very unusual to do so in the circumstances where there was a safe placement but the problem related to the condition of contact.
[73]. It was accepted that although GL did not take the decision to terminate contact she was aware of it the following day and could have countermanded it. She chose not to do so and explained her reasons in the interests of the children. The possibility of not complying had been discussed with her. It was not common but not unheard of for a local authority not to comply with a condition of a supervision requirement. There is delay in the system and social workers have to arrange matters before the case can be returned to a Children's Hearing. Parliament has recognised that local authorities may not comply with supervision requirements and introduced provisions to deal with such situations. It was suggested that it was assumed that generally local authorities would be acting in good faith.
[74]. The making of contact available on 5th August 2013 was consistent with the once a month regime and also demonstrated CM's bona fides. When GL returned from leave she sought legal advice in relation to the letter from AT's Solicitors. She did not receive advice that she was in contempt of court.
[75]. It was accepted that CM was unhappy with the decision that AT should have contact once per week. It was not contempt to be unhappy. She encouraged the foster carers to comply. She was motivated by the interests of the children. The intention was to protect the children.
[76]. At most CM and GL may be guilty of errors of judgement. It was accepted that it was difficult to defend the lack of communication with AT after 15th July 2013 but she did have the report prepared by CM and accordingly had an explanation of her views.
[77]. Notwithstanding that it was accepted by Mr Ellis that CM was not an ideal witness I was invited to prefer her evidence where there was a difference with other witnesses.
Response
[78]. In reply Mr McAlpine submitted that, firstly, the conduct of CM and GL was wilful or intentional; secondly, contempt can arise from a failure to act; thirdly, the standard of proof was beyond reasonable doubt and fourthly that the evidence of one witness was sufficient and corroboration was not required. I was referred to Johnston-v-Johnston, Muirhead-v-Douglas 1979 SLT (Notes)17 and Byrne-v-Ross 1992 SC 498.
[79]. It was emphasised that CM and GL were professionals. Their conduct was analogous to that of a parent with care who wilfully refused to make a child available for contact. Such behaviour was unacceptable. I was referred to M-v-S 2011 SLT 918 at para 43. The circumstances of this case were analogous. CM defied the order of the court, behaviour which was sanctioned by GL. It affronted the authority of the court and frustrated the rights of AT. AT could do nothing to change CM's views and had no remedy.
[80]. AT had no right of appeal unless a substantive decision was made by a Children's Hearing. Since the hearing on 22nd July was continued without any substantive decision being made AT was unable to do anything about the decision made by CM and GL. Had a place of safety warrant been sought and granted AT would have had a right of appeal.
[81]. In order for the decision of the court to have effect Children's and Families Social Worker required to take steps to make the children available. CM was tasked with that responsibility. By failing to take those steps the order of the court was frustrated. Although the interlocutor did not specify that the social workers were to do certain specific acts it was implicit in the order that they required to take steps to facilitate contact.
[82]. Mr McAlpine agreed with Mr Ellis's comments on the difference between the manner in which CM and GL gave their evidence. He submitted that in these circumstances it would be open to the court to prefer the evidence of other witnesses rather than CM. It would also be open to the court to find CM, and by her adoption of CM's conduct GL, guilty of contempt. He made no motion to that effect since it was a matter for the court.
[83]. Mr McAlpine drew attention to the Codes of Practice for Social Service Workers and Employers of the Scottish Social Services Council and the procedure for complaint. He invited me to consider referring this case to the Council. Mr Ellis objected to the introduction of the Codes of Practice which had not been put to the witnesses. In any event he advised that the SSSC were aware of the circumstances of this case.
Discussion
[84]. It is not disputed that CM and GL were aware that on 24th May 2013 appeals against a Children's Hearing's decision to reduce the frequency of contact with the children were allowed by this court. They were also aware that the court pronounced in each child's case an interlocutor in which AT was found "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". CM was in attendance at court on 24th May 2013, was advised of the outcome of the appeals immediately after the hearings and received the next working day, by email from the Reporter, a full and detailed account of the proceedings. Subsequently, CM received a copy of the interlocutors and the full Notes of reasons attached thereto.
[85]. In my opinion, there does not need to be a peremptory order requiring someone to do or refrain from doing something before an issue of contempt may arise. It is clear from the decision in Muirhead-v-Douglas that the acts and omissions which may amount to contempt of court "are not capable of precise delimitation or formulation". It is, as was said by Lord Cameron at page 18, a question "of fact and circumstances in which the position and duties of the party alleged to be in contempt are necessarily material considerations". In that case the complainer was a Solicitor who by failing to be present in court when his client's case called caused delay, inconvenience and an interference with the administration of justice. His explanation was considered inadequate and his conduct was considered to be a contempt of court. In Beggs-v-Scottish Ministers no peremptory order of the court had been granted. Rather, an undertaking had been given by the respondents in the course of other proceedings. In this case CM and GL are Social Workers who have professional responsibilities to the children in the care of the Local Authority. In the interlocutors of 24th May 2013 the court regulated the contact between AT and the children. The children are accommodated with foster carers employed by the Local Authority and determined upon by the Children's and Families Department at an address which is not disclosed to the children's mother or to this court. Accordingly in order for contact as allowed by this court to take place CM and GL required to make the children available. Further the court qualified the exercise of contact by stipulating that it was to be supervised by the Social Work Department. Accordingly not only did CM and GL require to facilitate contact taking place they also required to arrange for it to be supervised.
[86]. There was no doubt in the minds of CM and GL as to the meaning of the interlocutors. They understood that they, as the Social Workers responsible for the care of the children, required to facilitate the contact to which AT had been found entitled. That a meeting was held shortly after the appeals were allowed, attended by the various social workers involved with the children and the foster carers, at which the effect of the court's interlocutors was discussed, demonstrates that all relevant parties were aware of the terms and effect of the interlocutors of the court. Following that meeting arrangements were made for contact to take place on, almost, a weekly basis as provided for in the interlocutors. Accordingly although the City of Edinburgh Council, as the relevant Local Authority, was not a party to the proceedings in which the interlocutors were pronounced their Children's and Families department had full knowledge of the terms of the interlocutors and their responsibility, and the steps required, to give effect to them.
[87]. In my opinion these facts and circumstances and the respective roles and responsibilities of CM and GL are the kind of material considerations that Lord Cameron had in mind in considering whether contempt of court might arise.
[88]. The test to be applied in considering whether to hold a party in contempt was considered in Beggs-v-Scottish Ministers. At para 30 Lord President Cullen said, "It is clear that in order to constitute contempt of court conduct requires to be wilful and to show lack of respect or disregard for the court. It would not qualify as contempt if the conduct complained of was unintentional or accidental. What should be held to establish contempt plainly depends upon the nature of the case."
[89]. The decisions by CM and GL, on 11th and 12th July 2013 respectively, to interfere with and terminate the contact provided for in the interlocutors of 24th May 2103 were deliberate and intentional. The decisions were not made unintentionally, accidentally or through inadvertence or oversight. GL, at least, acknowledged that she was aware that by taking the decision to terminate contact they were not complying with a legal requirement and that their decision was accordingly unlawful.
[90]. As Lord Cullen also said in Beggs-v-Scottish Ministers, a failure to comply with an order or undertaking "implies on the face of it a lack of respect for the order or undertaking and hence for the authority of the court as in Muirhead-v-Douglas.".
[91]. In my opinion the failure to comply with the interlocutors of 24th May 2013, by ceasing to make the children available for contact with AT, and thus interfering with the administration of justice, implies, on the face of it, a lack of respect or contempt for the order of this court. The issue in this case is whether CM and GL's conduct can be explained as anything other than contumacious.
[92]. To say that CM was an unimpressive witness, as acknowledged by her own counsel, would be an understatement. It may be that she found herself in an unfamiliar, and serious, position and as a result was anxious to avoid any admissions or make any concessions, which might be misinterpreted. However the manner in which she gave evidence, which contrasted starkly with that of GL and the other witnesses, conveyed an impression of a less than satisfactory level of understanding and professionalism to be expected from a Children's and Families Social Worker with some 25 years experience. She held a firm and intractable view about the cause of any disturbed behaviour by the children and appeared unable to distinguish between an expression of her opinion, whether professional or not, and an assertion of fact. Where her evidence differed from that of other witnesses I preferred the account given by the other witnesses.
[93]. From the evidence, including the documentary evidence, it was clear that CM was aggrieved that she had not had an opportunity to give evidence at the hearing of the appeals. I accepted the evidence of AT and her grandfather that she had expressed the view that the court had not done its job properly. I inferred from her repeated reference to the court's failure, as she saw it, to hear from her that it influenced her attitude towards the decision of the court. There was a significant difference in her attitude to the decision of the Children's Hearing of 22nd August 2013, which essentially reached the same view as this court, explicable only by the fact that she had had an opportunity to be heard. While she continued to disagree with the decision to maintain the frequency of contact at once per week and continued to believe that such contact was having a detrimental effect upon the children she denied that she would take any steps to terminate contact as she had in relation to the decision of this court.
[94]. It may be indicative of CM's lack of understanding of the procedure of appeals before this court under section 51 of the 1995 Act that she expected to be called to give evidence despite the fact that at that time she was not the author of any relevant report. Indeed had any further report been called for to assist in deciding the appeals it is more likely than not that it would have been requested from the children's allocated social worker who had the greatest knowledge of them. CM did not fulfil that role. She accepted that she had no direct involvement with the children and had seen them only on visits to the foster carers.
[95]. Although CM believed that the court had not had full information upon which to reach its decision on 24th May 2013 no consideration was given to any appeal. No attempt was made for the cases, and in particular the issue of contact, to be reviewed immediately by a Children's Hearing. A Children's Hearing was requested, on about 18th June 2013, by the children's then social worker, GM, for the purpose of obtaining advice on proposed plans for permanency.
[96]. After 24th May 2013 a meeting was held with the foster carers and relevant social workers to discuss the outcome of the appeals. It was accepted that contact required to be in accordance with that ordered by the court. The first contact between AT and the children was arranged to take place about 10 days after the interlocutors were pronounced. The foster carers were to continue to note their observations of the children's behaviour. Any discussion about the implications arising from the court's decision did not involve AT. No social worker appeared to have been allocated to her support.
[97]. I would observe that it was, at best, disappointing and, at worst, a matter of concern that the case records for the children relating to the issue in these proceedings were not available to assist the witnesses and the court. In an issue of this nature it would have been helpful to have sight of the records to clarify the dates and details of the various events. CM in particular had difficulty in remembering when and with whom she discussed various matters. It is, however, a matter of concern to note that in relation to significant decisions taken in this case there do not appear to be any contemporaneous notes but only a summary, and that prepared some weeks after the events. Despite the nature of the decision taken by CM on 11th July 2013, from the evidence of GL, it appears that no records were made of the decision or any communications relevant to it until about 5th August 2013. Two extracts from the case records were produced being apparently contemporaneous notes relating to attempts to, and contact with AT on 12th and 15th July 2013. While acknowledging the burden of record keeping it is in my opinion unacceptable if no detailed contemporaneous record is maintained of the history of significant events in the life of a child for whom Children's and Families Department have responsibility. The absence of such records may lead to errors, misunderstandings and failings in important communications and information. It is significant that in the extract dated 12th July 2013 the author noted "No notes on SWIFT pertaining to this (cancellation of contact) by allocated worker.".
[98]. On or about 27th June 2013 CM prepared a report for a Children's Hearing fixed to take place on 4th July 2013. GM had left shortly before then. The report contained a lengthy narrative of the history of involvement with the children. In preparing the report CM "cut and pasted" information from previous reports.
[99]. While apparently presenting a chronological account of involvement with the children since the birth of AP, the report in relation to AP appears to contain omissions. In particular there are no entries during the period from February 2012, when the children were received into care, until February 2013, when the supervision requirement was first reviewed. A supervision requirement must be reviewed within one year if it is to continue. It may be significant that no earlier review was requested. Further although there had been five periods of contact since 24th May 2013 by the time of the report the only one mentioned in the report was when AT was apparently late in attending. The report contains information about a history of domestic abuse not only between AT and CP senior but also in AT's family. Although CM said that support in the form of domestic abuse counselling had been offered to AT there is no reference to such support or indeed to any other form of support. There is no reference to any attempt to hold CP senior to account for any abusive behaviour. There is no reference to any specialist support for the children such as might be available through a programme like CEDAR (Children Experiencing Domestic Abuse Recovery).
[100]. The report narrates behaviour of the children said to occur following contact and indicates a view that contact should be reduced to once monthly. It contains the phrase "The purpose of contact should be about respecting the boys' life story and enabling them to make sense of who they are ..". The phrase appeared in the report prepared by GM for the Children's Hearing on 25th February 2013 in which it concluded with the words "rather than about sustaining a relationship with their birth parents". This sentence was the subject of criticism in the hearing of the appeals. In her evidence CM acknowledged that the criticism was well founded and said that in cutting and pasting she had omitted to delete this from her report. I did not accept CM's evidence and formed the impression that she was being disingenuous. In her report CM changed the ending of the sentence by adding the words "and in the writer's experience over 25 years this plan usually runs parallel with the children having safe and consistent access to their parent/s until a court of law considers and decides upon their future.". "This plan" clearly refers back to the "purpose of contact" and it is simply not credible that that part that had been criticised by the court was left in the report as a result of oversight.
[101]. However there may well be other errors in the report as a result of a failure to check its accuracy. CM in her evidence confirmed that, as the supervisor, she would not and had not supervised contact between AT and the children. In the paragraph on page 10 of the report about AP relating to current or proposed contact arrangements and the impact on the children it is stated "When the writer had supervised contact....". This passage also appears in the report prepared by GM for the hearing in February 2013.
[102]. The report does not convey an accurate picture of the arrangements for contact as at 27th June 2013. At page 13 in the paragraph dealing with the parent's view it is stated "A is of the view that contact should not have been reduced to monthly and would like it reinstated to weekly". The recommendation is "that contact...remain at monthly."
[103]. Given the similarities in the circumstances of each child one might have expected that the reports prepared for each of them would be in similar terms. However in the report prepared in relation to CP it is stated at page 12 "Since contact... has been reduced to once per month C has presented as being much calmer and less anxious." In the paragraph dealing with what the child needs on page 13 the report details AP's needs. CP's report recommends, "contact is reduced to one contact per month".
[104]. The inaccuracies, and the confusion between the reports, are more than regrettable. Criticisms in relation to inaccuracies in fact and law in the reports prepared for the Children's Hearing on 25th February 2013 were made in the Note attached to the interlocutors of 24th May 2013. It is disappointing that little, if any, regard has been paid to these criticisms. In view of the significant decisions to be made about children's future family life it is clearly important that reports prepared for a Children's Hearing are at least factually accurate.
[105]. While there are expressions of concern in the reports about the impact of contact on the children there is no indication of any difficulty with the foster carers continuing to care for them. Indeed it is stated in the Summary and Conclusions on page 13 of AP's report, and page 15 of CP's report, that the foster carers "have demonstrated their commitment despite challenging behaviour" from the children. If it had been suggested to CM that the foster carers were thinking about "giving up" on the children one would expect some reference to their position in the report. From the absence of any such indication I infer that as at 27th June 2013 no concern had been expressed about the security of the placement with the foster carers.
[106]. When the children's cases were heard by the Children's Hearing on 4th July 2013 a volume of papers, which had been available to the court, was presented on behalf of AT. The members of the panel had not had an opportunity to peruse the papers in advance of the hearing. In these circumstances it is understandable that they felt unable to dispose of the cases and that in the interests of fairness they should continue the cases to another hearing so that all the papers could be read properly.
[107]. CM indicated that she did not understand that although the hearing was to be continued she could still raise her concerns about the impact of contact on the children. I accepted Miss Pattison's evidence that she did not say anything to CM, which might be interpreted as indicating that she could not raise the question of contact. I found it incredible that a Children's and Families Social Worker of 25 years experience, and in particular someone holding a supervisory position, was unaware of what she was able to raise at a Children's Hearing. In any event, it is clear from the reasons for their decision and Miss Pattison's evidence that the circumstances of the children were discussed. I accepted the evidence of the Reporters that it would be usual for the panel to enquire about the circumstances of any child whose case was being considered. To do so would be expected having regard to the purpose of any hearing. The panel would, or should, have read the reports prepared by CM. That the reasons note that "Social Work advised that both children while intermittently exhibiting signs of stress and disturbance are currently safe and well in their placement" confirm the evidence that CM did not take the opportunity to express any urgent concern about the security of the placement or press for a review of the arrangements for contact.
[108]. CM displayed a concerning lack of knowledge of the provisions of the 1995 Act when she admitted that she was unaware that, when the hearing was continued an application could have been made for a place of safety warrant, as an interim measure. In terms of section 69(9) of the 1995 Act such an order may regulate contact. While it was suggested that it may be more unusual in circumstances where a supervision requirement has been made one would expect a Social Worker with CM's experience and position to be aware of what orders might be applied for in different circumstances and in particular where it was being asserted that the impact of contact upon the children was traumatic.
[109]. I did not accept the evidence of CM in relation to the events leading to her decision to terminate contact. In accordance with usual practice she contacted Miss Rankin on 8th July 2013 to discuss a date for the adjourned Children's Hearing. She did ask for an earlier date than that which was initially offered. At that time she intimated to Miss Rankin her intention to terminate contact. This was prior to any discussion with GL or the foster carers. Contact had not taken place that day as arranged. I accepted AT's explanation about confusion about the venue because of a change of social worker and transport arrangements. Whether there is any connection with CM's decision to terminate contact can only be a matter of speculation but it is a remarkable coincidence that within two working days of a hearing at which the children were said to be safe and well in their placement CM was intimating an intention to terminate contact because of a perceived danger that the placement was breaking down. We know that the placement did not break down and that notwithstanding the decision of the Children's Hearing on 22nd August 2013 when the frequency of contact was confirmed at once per week. Only after the termination of contact were additional supports put in place and additional funding provided to the foster carers.
[110]. At times during her evidence CM said that her decision was taken in consultation with a member of the legal department of the City of Edinburgh Council and Miss Rankin. At other times she appeared to accept that she did not discuss whether it was open to her to terminate contact. She accepted that the statement in her report dated 16th July 2013 that "prior to contact on 15th July the writer consulted with the local authority's legal services and consequently cancelled the contact on 15th July until this can be further discussed at a Children's Hearing" was inaccurate. She then suggested that she should have said "Reporter" instead of the local authority's legal services. I accepted Miss Rankin's evidence that no such consultation took place. I formed the impression that CM was being disingenuous when she tried to suggest that she had taken her decision in consultation with anyone. I also formed the impression that by stating that she had consulted with the local authority's legal services she sought to attach a degree of credibility to the termination of contact.
[111]. CM's conduct following her decision to terminate contact appears, even to her counsel, indefensible. She did not ensure that AT was advised at the earliest opportunity. I did not accept that appropriate steps were taken. CM was critical of AT and the repeated changing of mobile telephones. A variety of telephone numbers were referred to. The number apparently provided to the duty social worker by CM does not appear to have been a number used by AT. The duty social worker apparently attempted to use different numbers obtained from the records. Surprisingly, the number which appears on the reports to the Children's Hearing was not attempted. CM was aware of the involvement of AT's Solicitors and their request to be included in correspondence with her. They were not advised of the decision to terminate contact. She did not speak with GL about her decision. CM, after making the decision, was unavailable until she returned to work the following week. Apart from seeing AT at the Children's Hearing on 22nd July 2013 she made no attempt to communicate with her or explain to her the significant decision which she had made. The information contained in the reports to the Children's Hearings, copies of which AT would have received, is no substitute for the courtesy of a face to face meeting to offer an explanation and a plan for the future. The meeting which took place on 31st July 2013 was in a sense forced upon her by AT's enquiry about contact. Even allowing for the criticisms which CM has about AT's care of the children and the concerns which she has expressed about the impact of contact with her it would seem to any reasonable person that her conduct towards AT was at best cavalier and at worst callous.
[112]. The provisions of the 1995 Act set out a process whereby decisions in relation to children are made. Children's and Families Social Workers are undoubtedly faced with many difficult and challenging situations. Where the State intends to interfere with the right to family life, even in emergencies, proposals for the care of children require to be scrutinised, usually by a court, before there is authority to act. Parents or other relevant persons, in the interests of fairness, have rights of appeal to challenge those proposals. Where it is suggested that compulsory measures of care may be required grounds of referral, if not accepted, must be established before the court. Decisions in relation to supervision requirements and any conditions, ordinarily, are made by a Children's Hearing, before whom parents or other relevant persons have the opportunity to challenge a social worker's account and recommendations. Where any of these decisions are not accepted there is a right of appeal.
[113]. Whether or not CM had concerns about the impact of contact upon the children, and as a result their foster carers, by taking the decision to terminate contact she interfered with the administration of justice. Her proposal to terminate contact was not scrutinised by any court or other hearing before it took effect. AT had no opportunity to challenge the decision. It may be that judicial review would have been a process open to her but it is unlikely that such proceedings would have been heard before a Children's Hearing had been held. Although it is suggested that it was anticipated that only one contact would be interfered with and it was not anticipated that the hearing would be continued, CM, in my opinion, did not take the appropriate steps open to her to ensure that her decision was reviewed. Until reviewed by a Children's Hearing contact continued to be regulated by the decision of this court. Contact was not reinstated following the continuation of the hearing. I formed the impression that CM believed that she, and not the court, knew what was in the best interests of the children.
[114]. GL gave her evidence in a wholly different manner from CM. She did not demur from the responsibilities of her role as Practice Team Manager. She readily accepted responsibility for the decisions of CM and even for CM's lack of technical knowledge particularly relating to the availability of a place of safety warrant as an interim measure. It was concerning, however, that her information about the circumstances was dependant upon what she was told by CM. She did not review the records and other papers until these proceedings were initiated. In particular she did not read the Notes of reasons for the decision of this court in allowing AT's appeals until then. She did not initiate any investigation into the evidential basis for the assertion that it was contact, or at least the frequency of contact, which was causing the children's behaviour. She accepted what was presented to her by CM. She did not question the decision taken by CM although she knew that it was unlawful. I was unimpressed by her assertion that she thought she was dealing with a condition of a supervision requirement. Even though she was aware that AT had not been informed of the decision and would not know that contact was not to take place on 15th July 2013 she did not countermand the decision until the issue of the frequency of contact could be considered at the Children's Hearing arranged for 22nd July 2013. In these circumstances GL also interfered with the administration of justice.
Decision
[115]. I am satisfied to the necessary standard for the foregoing reasons that the conduct of both CM and GL was contumacious. They have shown disrespect for and disregard for the decision of this court and interfered with the administration of justice. They have affronted the authority of this court, frustrated the rights of AT and deprived the children of contact with her from 15th July 2013, with the exception of one occasion on 5th August 2013, until contact was reinstated following the decision of the Children's Hearing on 22nd August 2013.
[116]. During the course of his initial explanation of the actings of CM and GL Mr Ellis described a situation where a social worker would not comply with an order of the court or Children's Hearing as "not uncommon". As an experienced Advocate of some standing I am satisfied that Mr Ellis would have chosen his words carefully following receipt of full instructions. However CM and GL did not accept that description in their evidence. It was accepted that such a situation was not "unheard of". Whether there is any material difference between the expressions may be a moot point. There is anecdotal evidence to suggest that it may occur more frequently than even GL was prepared to acknowledge. It must be emphasised, however, 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. Given the situations that children and families social workers can face at times, it may be that it cannot be said that there could never be an extreme situation when a social worker may believe it unsafe to comply with a legal requirement. 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. Generally there is no difficulty about a Sheriff being made available to deal with urgent applications such as for a Child Protection Order. These applications are of course made in order that there be authority for a child to be removed and kept in a place of safety. Unless and until such an order is made there is no such authority notwithstanding any view which Children's and Families Social Workers might hold about removal being in the best interests of the child. They are unable to act to forcibly remove a child without such authority. Consideration should perhaps be given to a similar procedure to allow an application to vary on an urgent basis a supervision requirement or condition. Provisions for intimation of hearings and rights of appeal would be necessary.
Complaint to Scottish Social Services Council
[117]. Mr McAlpine invited me to consider the submission of a complaint to the Scottish Social Services Council. Mr Ellis advised me that the SSSC was already aware of the circumstances of this case. Given the unfortunate publicity which this case has attracted it may be unlikely that it would not have been drawn to their attention. Even if I had not found CM and GL to be in contempt of this court I would have had concerns about the standards of practice and record keeping in this case. In view of the opinion which I have reached, and the apparent lack of technical knowledge and the manner in which CM has given evidence and generally conducted herself in this case it may be some investigation by the SSSC is inevitable. There are also issues about the management and level of supervision of the case by GL. The City of Edinburgh Council, as employers of CM and GL, also have responsibilities in relation to their staff including managing their performance.
[118]. I do not consider that a complaint should be made to the SSSC by this court. However I will direct that a copy of this judgement be made available to them and to the Chief Officer of Social Work for their information. In my opinion, there is an indication of a need for further training, monitoring and supervision at least. The terms of the reports written by CM, in which AT is criticised for failing to keep the children safe and for continuing to be involved with CP senior without seeking to hold him to account for his behaviour, do not demonstrate, in my opinion, an appropriate level of understanding of the complexities of domestic abuse or the coercive control which is a central feature of such behaviour.
Further Procedure
[119]. In the circumstances of this case I do not consider that it is necessary to impose any penalty on CM or GL. The finding of contempt is of itself of considerable importance having regard to their professional positions. I do not require to be addressed in mitigation.
[120]. Mr McAlpine moved for the expenses of the proceedings in so far as they have not been dealt with. His motion was opposed on the ground that a finding of expenses would be disproportionate. These proceedings would not have been occasioned but for the conduct of CM and GL. Mr McAlpine appeared at the request of the court to facilitate the leading of evidence from witnesses including those identified by the court. Public funds were not made available to those instructing him. In all the circumstances it appears to me to be reasonable that CM and GL bear the expenses.