Proceedings To Determina Whether Cm And Gl, Social Workers, Childrens And Families Department City Of Edinburgh Council Are In Contempt Of Court
| Jurisdiction | Scotland |
| Judge | Sheriff K.E.C. Mackie |
| Court | Sheriff Court |
| Date | 16 December 2013 |
| Docket Number | B520/13 |
| Published date | 17 December 2013 |
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...
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