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 [2015] EWHC 2090 is a useful illustration of the difficulties facing private individuals who allege wrongdoing by professionals.
Procedural hurdles
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 [2016] 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 [2008] EWCA Civ 1280, [2009] 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 [2004] 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.
Conclusions
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) [2013] EWHC 2694 (Fam), [2014] 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.
A Sheriff (judge) in Scotland charged two social workers with contempt of court for failing to follow an order for contact she has made between a mother and her children. They disagreed and had cancelled contact without going back to the court. The sheriff’s action was overturned by higher court. Judgment seemed to give carte blanche to social workers to replace courts judgement with their own.
I have been treated with contempt by all of the people there to protect children . Cafcass officer was totally awful ….didn’t know anything about me ,spoke to me for 15 mins but decidedshe wouldn’t reccomend the children come to myself (their grandmother). Social Worker was incompetent and a liar ….wrote a report of lies about myself ,knowing they were lies and have since been proven to be ,yet she produced this report to a judge who used it against me. The barrister who ,when I entered the court building ,told me there was no point in going intointo court as their minds were made up . I have since been accused of not going into court when I had the chance . The Social worker after court implied there would be no point in complaining as she was leaving for Australia. The complaints procedure is too one sided …each department defends each other ,leaving the victim to look the person in the wrong . The judge to whom I asked to give my opinion to at the opposing of adoption hearing was not interested in hearing my side ,even though I had written everything done against me in a letter . I was more or less told to go away and shut up. If I spoke to the media . newspapers or put anything on face book I could be held in contempt of court and could go to prison. And this is a free country ….I don’t think so . This system is rotten to the core . Children being taken for no good reason so someone needs to ACT fast as there is a great big can of worms ready to explode .
I don’t recognise this system but your comment is not unusual – which is sad. Either things are a lot worse than I realise or people perceive them as being much worse than they really are. Either way – we have a problem. Quite a few people comment that they are told ‘not to come into court’ by their barrister and I find this really odd. I have certainly advised parents that I didn’t see any point in them contesting the case against them in a court but I have never told a parent not to come into court, unless it was obvious that they were so distressed it would have been unkind to make them.
I also note Maggie’s comment and I would be interested to read a judgment, if there is one, which outlines why the higher court over-ruled the sheriff.
My family have had same problems. GAL solicitor advised i should write any failings down. But when i raise concerns all the social worker and other professionals have to say is its me thats lying and then write in the reports that im not cooperating. We have showed that there arelies in reports but even our legal representation is wary about saying anything as we been told if we dispute to many things the Judge might not be happy and could go against us. As a Christian i believe in the truth and it hurts knowing that Social Workers etc can lie in court about us and nothing much we can do. They even said my daughter was a fantasist because she told them positive things about home. She also stated i used to drive a Mercedes which is true but because i live in a housing estate they said she was making this up. The system needs changing as families are being torn apart and ignored due to the way the system is set up.
Yes the system is Rotten to the Core and Jeremy Corbin even stated that the system is Rigged against the public.
As for Complaints against Social workers and others, well thats a major gripe with thousands of parents all over the UK. the 3 stage complaints procedure at councils is nothing but a farce as the outcome is completely controlled by that council. even the Ombudsman is known for closing a case very quickly even when the evidence clearly shows Wrongdoing. Family court Judges never take action against Social workers committing perjury on Oath and falsifying case files. the usual action is to announce to the court to have that information removed from the record and continue like nothing ever happened and the Judges simply agree to that.
My comment is about fundamentals -When someone lies to the court for whatever reason or ignores a court decision because they can or simply does not have the skills they hold themselves out as having ( fraud?), why are they still considered safe around children and families even though it is manifestly evident they are not? Does everyone involved think that families don’t deserve anything better than incompetent and unethical practice just because..
If so, then where to from here other than an unending spiral down to the bottom…….?
Also, as regards ‘state of mind’ of the liar:
Monroe v Hopkins [2017] EWHC 433 (QB)
[66] I remain of the view I expressed in Barron v Vines [2016] EWHC 1226 (QB) [22], that when malice is alleged in aggravation of damages,
“… the issue is not the actual state of mind of the defendant. It is whether the claimants have suffered additional injury to feelings as a result of the defendant’s outward behaviour. If the defendant has behaved in a way which leads the claimants reasonably to believe he acted maliciously that is enough.”
No one is accountable at any stage. Its unlikely that many of the families’ cases arriving at Child protection conferences right though to family court would even be be there if the investigation had actually followed policies, and the reasons why familes were stuggling were properly identified. If multi agency meeting are to work, there needs to be more understanding of how each agency works. A school cannot expect a child to be well and fit to attend school if the NHS waiting times are years rather than months, and Doctors would assume that children’s SEN are being met at school when they aren’t. Some simple questions and proper investigation would make all the difference and actually mean familes would have access to the support they need, not have their difftulties made harder by the agencies who have a duty to support.
I reported to the HSPC a social worker who pretended to be registered when giving evidence in the Family Court but was unregistered at that time and was therefore committing an offence. They did nothing.
In contrast, Waney Squier, a neuro-pathologist with an impeccable reputation was struck off by the GMC after giving evidence to defend parents accused of Shaken Baby Syndrome. The real crime is going against the establishment, not committing perjury. though she was not accused of that.
Dishonesty is institutionalised in social work. I have yet to see accurate and honest minutes of a meeting I have attended with a parent or child.
“The trust of the innocent is the liar’s most useful tool.” – Stephen King
“This is all very well” what an odd comment to make in response to the header “But what about the professionals who lie?”!
HCPC covers for social workers and most of their FTPs only show details of the offence when it is other professionals, most social worker ones are blank. Funny that.
Family courts appear to be almost quasi-courts because of how they behave. Social workers are 99% of the time allowed to get away with the most objectionable behaviour such as lying and falsifying records. They do it, because they can. Because the courts don’t make findings of perjury.
It’s absolutely true as Dr Manhatten says that the system is rotten to the core and also that it’s rigged against the public.
“Either things are a lot worse than I realise or people perceive them as being much worse than they really are.”
Are you that naive? Of course it’s a lot worse than you seem to think. So many people saying the same…heard of Occam’s razor? There simply isn’t this ocean of awful parents who make things up and it’s backed up by people such as Jean Robinson of AIM and Maggie Mellon above, along with plenty of other professionals, such as Louise Tickle and Lauren Devine et al.
We’re not quite sure what you mean by the ‘odd comment ‘ bit at the outset of your comment but approving the comment for publication regardless so your views are heard
Family lawyers charges are in 10’s of 1000’s of pounds. This much money sloshing about and a complete lack of oversight is inevitably going to lead to corruption – the payment of money to individuals deciding the future of children.
My experience of the administration of family courts has been that they are only interested in the money paid to their ‘friends’ and they are even prepared to break the law.
The elephant in the room being ignored is UK family law staggering £1.6 billon annual turn over in the UK – according to market information companies. Between 30 and 40% of these cases involve children.
It would be naive to believe that companies with that sort of money coming in annually are going to permit mere care for children to get in their way. This is why Cafcass insist there should be no oversight of them ‘for the sake of the children’
This money (and the fact that these firms can supply their own free legal advice) is easily enough to control the HCPC and any other supervising organisations. These companies are rich and powerful enough to prevent the police from investigating them.
This is simply any area that has become shot through with corruption due to the amount of money being thrown at it.
Not quite sure I understand the logic of your comment Andy. Which companies are you talking about?
The problem with regulators is that for the most part are operated by former child social workers.
They already know what happens and the amount of false information submitted into court. No surprise hardly anything gets upheld.
The best way to deal with child social workers and family courts is to highlight and increase public awareness of what actually happens behind closed doors.
This includes the useless legal professionals hired to defend not wanting to disagree with CS as they probably want to win contracts for the LA in the future.
It’s a very corrupt, incompetent money generating system messing with children’s lives. The family court should be removed , guardian replaced by a professional who is not a social worker including a new regulator who have no links to social care.
I say all this as someone indirectly effected by their way of operating.
Social services are a law onto themselves. It has been proved beyond doubt that they have no respect for the orders of courts and will commit contempt of court with no qualms whatsoever. The social workers will lie, commit perjury, ruin the reputations of accusers and destroy families to get their way. It gets to a point where every conversation has to be recorded and every contact witnessed. They often behave in an aggressive manner if questioned. The whole system has become a morass that requires cleansing.
My daughters socaial worker is a liar as grandparents we were assessed to take care of children but she said were not viable she says I have other care commitments and sYs she has it on there records but its a lie she lied and said she was sorting out paperwork for us to take care of children but I fact she was getting an emergency removal as I had the children so when she turned up with police obviously it was a shock i couldn’t believe it so my husband I and 2 family members were arguing with her as we were a.l crying and she got called a few bad words no arrests were made but now she has Sked the courts to see the footage of cbody cam from police so thats just something else for her to use against us its bloody outrag what goes on i only hope the judge sees it for what it was and doesn’t keep children in care but all I keep hearing is the judges always go with socail services
Hi DR,
Judges do not always go with social services, but it sounds as if it would be a good idea to get some legal advice if you can.
TP Team
Totally agree about lying social workers. I was a foster carer for fourteen years, i made a mistake which i divulged, the agency took no notice but when i made it official the lies were non stop to save their own skins. Unbelievable untruths were told and they even tried to get an ex foster child of mine to say i assaulted him, he refused, eventually my wife and i were cleared and told we could continue to foster.
After our experience at the hands of these people we would never ever consider it again. I am writing a book to expose these people.
Social workers do break the rules and they do lie. Two of my children were removed unlawfully from my home for one night. There has been a cover up ever since. I have gone to the press and it should be in the papers this week.