On March 25th we considered what happened to people who refused to abide by orders made by the family courts and the powers family courts have to send them to prison in punishment.
That blog post prompted comments along the lines of what happened when the professionals in family cases – the local authority, social worker or CAFCASS – don’t obey court orders? Why don’t we see any professionals going to prison for contempt of court?
‘Administrative failings’ versus deliberate contempt
The first response to this question is that when individual professionals or large organisations don’t obey court orders, this is more likely to be due to administrative failings rather than a deliberate decision by an individual to demonstrate contempt for the authority of the court.
Any failure to comply with court orders has the potential to cause serious damage to the proper resolution of court proceedings, but the ‘administrative failings’ are more often properly punished by making costs orders then sending someone to prison. The bigger the organisation, the more difficult it may be to identify particular individuals as ‘to blame’ and the less appropriate it may be to subject them to serious punishment.
Such situations are very different to those where an angry parent has declared that he or she will deliberately flout a court order – that person is clearly identifiable, clearly blameworthy and the consequences of allowing people to be openly and deliberately contemptuous of court orders are very serious.
But what about the professionals who lie?
This is all very well; however we are aware that there are some chilling examples of individual professionals who have behaved very badly in court, were found to have behaved very badly and yet were not punished for their apparent contempt of the court process.
Once such example is the Hampshire case. At a hearing in Portsmouth in 2015 before HHJ Mark Horton, he recorded that the children’s social worker lied twice to the judge on oath; she was then promoted to Team Manager. Her Manager initiated the wholesale alteration of an original report and attempted to keep the truth from the parties and the judge; she remained District Manager for the Isle of Wight. He was concerned to note that none of the social workers who had been dishonest had been subject to disciplinary proceedings and directed that this judgment be sent to the Director for Children’s Services, Ofsted and those social workers’ supervisory bodies with a view to them considering whether further action against them was required.
However, in February 2017, the Health and Care Professionals Council (HCPC) found that the social workers had ‘no case to answer’ and they would not publish the reasons for their decision. This prompted The Transparency Project to send an open letter to the Professional Standards Authority, which oversees the HCPC. Our Chair Lucy Reed argued:
Ordinarily there would be limited public interest in the publication of information about charges which have not been pursued or upheld, but in circumstances where the Family Court has made serious adverse findings which would clearly amount to serious professional misconduct and where the HCPC has made a decision that is prima facie inconsistent with that there is a significant public interest in the basis for that decision.”
Therefore, not only are we faced with a situation where it appears that social workers may lie to the court with impunity, we are not able to examine the decision making process behind that. Just what is going on?
Yet in another case which we have previously written about a social worker was (eventually) cautioned by the regulator the HCPC some years after her inappropriate editing of records and inaccurate evidence in care proceedings (see here).
What if the bad behaviour is less obvious?
Not every case will involve such apparently clear cut examples of dishonesty as in the Hampshire case. The case of Dent, Mackay, Harman v H  EWHC 2090 is a useful illustration of the difficulties facing private individuals who allege wrongdoing by professionals.
In the Dent case, H was a father seeking contact with his daughter. He ended up a litigant in person and tried to have the mother’s solicitor and two Cafcass officers sent to prison for alleged breaches of court orders.
He alleged the mother’s solicitor had abused her position as a ‘trusted officer’
…to act in what was effectively a quasi-judicial manner when persuading [H] towards a slanted outcome’ by giving false legal advice in relation to H and Ms McKay in relation to international and/or European law and using deception and threats to achieve the outcome she sought for her client.
The court struck out H’s applications. He had failed to meet the relevant procedural requirements in FPR r 37.10 as his application notice did not provide full details of allegations; an application to commit someone to prison is very serious and the defendants were entitled to know what they were defending themselves against.
The court wasn’t willing to overlook these procedural irregularities because it can only do so when it is satisfied that no injustice has been caused to the defendant by the defect. The judge said:
62. Here, the defects go to the very heart of the matter. Far from setting out in full the grounds on which each application against each Defendant is made with specific details of the alleged act or acts of contempt and the dates upon which they are said to have been committed, there is no specific information at all save for a series of very general allegations. I take the view that the notices as they stand would not provide any of these Defendants with the full particulars to which they are properly entitled. Serious allegations have been put before the court and H invites me to impose upon each a sentence of imprisonment which would have far-reaching and potentially devastating consequences in respect of their professional careers and livelihoods, quite apart from the deprivation of their personal liberty. Each has a right to know the case which is put against him or her.
Identifying the behaviour complained about with sufficient detail is likely to be a significant hurdle in such cases, particularly for a litigant in person who feels a general sense of grievance about the proceedings as a whole.
In S v SP and CAFCASS  EWHC 3673 (Fam) (09 December 2016) another father sought the committal of a CAFCASS Officer for breaching court privacy rules by disclosing information about a case to the police in the course of discussions. His application failed because the rules permitted ‘disclosure in furtherance of the protection’, which this was.
Allegations that statements made are deliberately false
The court in the Dent case noted with approval the judgment of the Court of Appeal in the case of KJM Superbikes Ltd v Hinton : Practice Note  EWCA Civ 1280,  1 WLR 2406. That case identified the ultimate question as whether it is in the public interest to continue with the proceedings to commit someone to prison. When considering a complaint about false statements, the following factors were identified as particularly relevant.
- was the statement known at the time to be false?
- the circumstances in which it was made
- what is the evidence of the maker’s state of mind, including his understanding of the likely effect of the statement and the use to which it was actually put in the proceedings
- do the proceedings justify the resources that would have to be devoted to them
Further, the court must guard against the risk of allowing ‘vindictive litigants’ to use such proceedings to harass persons against whom they have a grievance.
Lord Justice Moore-Blick stated:
In my view there is also a danger of reducing the usefulness of proceedings for contempt if they are pursued where the case is weak or the contempt, if proved, trivial. I would therefore echo the observation of Pumfrey J in the Kabushiki Kaisha Sony Computer case  EWHC 1192 (Ch), that the court should exercise great caution before giving permission to bring proceedings. In my view it should not do so unless there is a strong case both that the statement in question was untrue and that the maker knew that it was untrue at the time he made it. All other relevant factors, including those to which I have referred, will then have to be taken into account in making the final decision.’
To whom does the professional owe a duty?
A serious difficulty for H in Dent was that the solicitor he complained about was representing the child’s mother and her professional duties were owed to her client. H needed to demonstrate that the solicitor’s behaviour crossed over from trying to do the best for her client into deliberate dishonesty and that is always a difficult hurdle. The court commented about the solicitor’s role:
She had no contractual relationship with H and at no time was her professional relationship with him impressed with any fiduciary or legal obligations. She had a professional obligation to act in the best interests of her client who, relying on the content of the Cafcass report, was unwilling to agree to an order for direct contact when such an order ran contrary to B’s clearly expressed views. Ms Harman had an obligation not to mislead the court. There is no evidence before me that she did so, still less that she fraudulently or knowingly practised a deliberate deception on the court.
It is clear that the ‘public interest’ test will be a high one in such cases and the court is likely to want to protect those who exercise public functions. For example, the President of the Family Division In Re J (Reporting Restriction: Internet: Video)  EWHC 2694 (Fam),  1 FLR 523 highlighted some important points when considering if parents should be prevented from talking about their experiences of the family court system:
- the recognition of ‘the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system’.
- the acknowledgement that the ‘fear of … criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction … even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar’.
- But there is a fundamental difference between ideas, views, opinions, comments or criticisms, however strongly or even offensively expressed, and harassment, intimidation, threats or menaces. The one is and must be jealously safeguarded; the other can legitimately be prevented.
- The freedom of speech of those who criticise public officials or those exercising public functions, their right to criticise, is fundamental to any democratic society governed by the rule of law. Public officials and those exercising public functions must, in the public interest, endure criticism, however strongly expressed, unfair and unjustified that criticism may be. But there is no reason why public officials and those exercising public functions should have to endure harassment, intimidation, threats or menaces.’
There is clearly a risk that some angry parents might want to try and get professionals sent to prison for reasons which may have more to do with their own sense of grievance than any justified proceedings for contempt. However, that risk cannot be used to stifle proper criticism and punishment of a professional who is found to have acted deliberately dishonestly – for example, by lying to the court or altering documents as in the Hampshire case discussed above. Their actions undermine the authority of the court and the rule of law every bit as effectively as is done by any angry parent who won’t obey an order.
Why don’t they go to prison?
It may be that the family courts are currently undergoing the same period of evolution that we have seen in attitudes to the police. For example, in 1980 Lord Denning upheld an appeal by West Midlands police against a civil action by the Birmingham Six over injuries they received in police custody, saying that to accept that the police were lying would open an “appalling vista,” Now, section 26 of The Criminal Justice and Courts Act 2015 provides that a police constable commits an offence by corrupt or other improper exercise of police powers and privileges, and is liable to a maximum term of imprisonment of 14 years.
There is no such corresponding provision in the criminal law to cover social workers or guardians. However, it is difficult to see why a dishonest social worker is any less dangerous than a dishonest police officer – the outcome of family law proceedings is rarely loss of liberty but often ends in the restriction or even ending of a parent’s relationship with their children. If parents are expected to be honest, open and co-operative with the court process then it is difficult to see why professionals should be held to any lower standard.
There are a variety of possible avenues in litigation to highlight professional misconduct and to seek redress and compensation but all of these are fraught with evidential difficulties and will cost time and money to pursue. See this post from the Child Protection Resource which discusses these in more detail.
Complaints about regulated professionals can be referred their regulatory body – but as we can see from the Hampshire case there appears to be a worrying disconnect between how the court and the HCPC treated social workers who lied.
We are hopefully going to see a continuing evolution of the family court’s willingness to both recognise and to punish appropriately any individual who acts to impede the court process. While it is clear that in many cases it is not going to be in the public interest to allow aggrieved parents to pursue applications to commit professionals to prison, there have been a number of recent cases where the dishonest behaviour of the professionals involved should have attracted serious punishment. A continued failure to recognise that will cause further significant erosion to public trust and confidence in the system as a whole.