David Orr – Response to Michelle Miller’s blog post and the Contempt case

This post is in response to Michelle Miller’s blog post, viewable here and has been prepared by David Orr:

The findings indicate two social workers who, with the best interests of the children in mind, did what they considered was right and proper in that regard” (Lord Malcolm)

Given the significance of the decision made by the Court of Session on 27 March 2015 for social work practitioners not just in Edinburgh but across Scotland (and arguably further afield), it is reassuring that this month’s blog post by Michelle Miller (Chief Social Work Officer) is dedicated to the matter. When three Senators of the College of Justice overturn a decision of one of their peers in this fashion their reasoning warrants close scrutiny. I had planned to write a response in the comments field attached to the blog but when I started it was hard to stop. I figured it was better not to hijack that platform hence the post on the ELPF website which welcomes contributions from any practitioner. These views are my own though, not those of the ELPF.

Since the case first came to public attention in September 2013 I have been hugely disappointed by the lack of reasoned comment and debate in the mainstream media exploring the complex issues which it raises about inter alia domestic abuse, contact arrangements, neglect and professional decision-making/discretion. Aside from a smattering of short pieces in a few of the Scottish broadsheets it fell to Kenneth Roy in The Scottish Review to draw attention to Sheriff Mackie’s original decision to proceed against the two workers and the implications of this action. The site also carried several further guest pieces by social work commentators including former Chief Social Work Inspector for Scotland Angus Skinner and former Director of Children and Families Services at Children 1st Maggie Mellon.

The Scottish Association of Social Workers (SASW) was in my opinion singularly unimpressive and toothless in its handling of the subject. I write in part as a conflicted SASW member. Former SASW Manager Ruth Stark in a news release on the association’s site on 25 September 2013 had this to offer on Sheriff Mackie’s decision to proceed against the two workers: “this is a wake-up call for social workers because their decisions and actions affect people’s lives”. While I do not expect the professional association to defend social workers unquestioningly I found it surprising and disappointing that a key spokesperson for social workers in Scotland could have adopted a position so jarringly out of touch with practice realities. While I feel there has been some improvement in tone in the comments made in recent weeks under the new SASW Manager Trish Hall, there was a lot of ground to make up. Fortunately UNISON was stronger in is defence of the two workers involved and has remained so throughout.

Turning to the intricacies of the case itself, there are learning points and practice dilemmas aplenty which could usefully be the subject of discussion in group supervision, at practitioner fora, conferences and seminars. Essentially the case seems to boil down to two competing principles relating to the “best interests of the child” (unstoppable force) and the overarching authority of the Court (immovable object). The principles assume a black and white world when in reality we all often operate in the grey areas. Part of the difficulty with any case of this nature though is that real people are involved. It is not some hypothetical case vignette. Two vulnerable children and young people, their family members and the professionals entrusted to work with them have not gone anywhere. Perhaps it is for this reason that people have been hesitant to begin to interrogate the learning from what seems to have been a pretty harrowing experience for all parties?

Reviewing all of the publicly accessible material, there are several points which I continue to find particularly troubling:

  1. In the GIRFEC world we often operate as Lead Professionals but do so as representatives of the local authority. Why then was it that two individual workers wound up in the dock and not the City of Edinburgh Council? The cynic in me feels that the workers in question were simply viewed as “low hanging fruit” in the eyes of one particular sheriff. I am not sufficiently au fait with the law of contempt in Scotland to know the answer definitively but I imagine that it is much easier to pursue contempt proceedings against an individual or individuals than it is to take on an organisation or institution. Was it simply that the path of least resistance for Sheriff Mackie in trying to make her point was directly through two individuals’ careers as opposed to through the larger beast of the City of Edinburgh Council?
  2. What additional checks and balances as regards the relationship between the Children’s Hearings System and the Courts are required to ensure that episodes of this nature are not repeated? Surely, the most appropriate course of action open to the mother of the two young boys when she believed her contact rights were being breached would have been for her to alert the Children’s Reporter directly or to instruct her solicitor to do so? What happened instead? A letter from the solicitor to one of the social work managers which “suggested that a potential contempt of court may have occurred” found its way to the Sheriff Clerk who in turn alerted Sheriff Mackie who in turn set the contempt proceedings in motion. This action ensured that the Children’s Hearings System was relegated to the position of an observer when it ought to have been a key player in proceedings.
  3. What role, if any, does the SSSC now have in this matter? It should be noted that it was Sheriff Mackie’s anointed legal representative Mr. McAlpine who invited her “to consider the submission of a complaint to the Scottish Social Services Council” in response to which counsel for the social work managers highlighted that “the SSSC was already aware of the circumstances of this case”. Sheriff Mackie’s insinuation was that the SSSC had been alerted to the details of the case “owing to the unfortunate publicity” it had attracted in the media. Was she correct? Does the subsequent quashing of the contempt finding which also received some media coverage mean that the SSSC has no further role? Interestingly Sheriff Mackie did not ultimately “consider that a complaint should be made to the SSSC by this court”. Whether or not that decision was influenced by her assumption that the wheels of a complaint to the SSSC were already in motion is unclear.
  4. On a related theme, what are the consequences for Sheriff Mackie, if any, following her peers’ decision? For social services employees and employers we have the SSSC but what is the equivalent regulatory body for sheriffs and judges? Is there one? As Moi Ali found in her position as Judicial Complaints Reviewer (JCR) before taking the decision not to seek a second term in office owing to her frustration at the “tokenism” of her role, transparency and accountability do not necessarily go hand-in-hand with senior legal office. It is hard not to read Sheriff Mackie’s judgement without developing a sense that she might fall into the category of what is known in the U.S. as the “Activist Judge”. It is clear from her CV that she has a particular interest in the enormous problem of domestic abuse in Scotland. She has responsibility for the Domestic Abuse Court pilot in Edinburgh and is a member of the National Group to Address Violence Against Women (VAW). Moreover in the late summer of 2013 she oversaw the high profile trial of disgraced MSP Bill Walker who was sentenced on 20 September 2013 to 12 months in custody for a plethora of egregious crimes against women. A mere three days later, the Proof Hearing against the social work managers commenced. I imagine the challenge for any legal decision-maker much as with any social worker is to avoid being drawn into the trap of “confirmation bias”, avoiding a situation where prior experience and learning clouds one’s capacity to approach new situations and circumstances afresh.
  5. Does social work training (undergraduate, postgraduate, CPD) cover in sufficient depth themes such as attachment, trauma and domestic abuse? Are the complexity of these themes unpacked and explored in a manner that allows students and practitioners to feel confident in their ability to deal with them effectively when encountered in real life? Moreover, does more intensive and demanding court skills training need to be developed to ensure that practitioners are appropriately equipped when required to take the stand and to face what may be extremely hostile questioning owing to the adversarial nature of the justice system in Scotland? Finally, what level of legal training is to be deemed sufficient for a frontline social work practitioner or manager to practise in a safe and defensible fashion? I do not imagine that any social work law lecturer prior to this case sought to prepare students for a situation where they might consider seeking a Place of Safety (PoS) warrant for vulnerable young people despite their already being in a safe place (i.e. with foster carers)! Ultimately I am frustrated that Sheriff Mackie effectively seemed to politicise a complex issue (that of contact arrangements between vulnerable children and young people and their families) that could have been discussed, debated and resolved through non-confrontational partnership working involving all relevant parties. Instead, she generated a great deal of heat and very little light.

To conclude, it is important not to underestimate the emotional toll that this ordeal will have exacted upon the workers involved. It has been a year and a half since September 2013 when the affair first came to public attention – eighteen long months of uncertainty, knowing that their professional integrity had been called into question in the most public of forums. If nothing else, I hope that in the quieter moments Sheriff Mackie might reflect on the impact of her actions and the toll exacted. Finally and most importantly there is the matter of two vulnerable young boys. Perhaps the most striking point is the extent to which the experiences went missing in the formal court process, a point highlighted by Anni Donaldson.  The legal account of their journey stops with the Children’s Hearing of 22 August 2013 at which time a psychological assessment was to be sought to establish whether a direct correlation could be identified linking contact with their mother and their apparent trauma symptoms. The outcome of that assessment and the many other assessments which no doubt followed and almost certainly continue are not known. Wherever they are in the system now, I hope they’re thriving.

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2 Responses to “David Orr – Response to Michelle Miller’s blog post and the Contempt case”


  1. 1 Alistair Brown April 23, 2015 at 17:11

    As the current Convener of The Scottish Asociation of Social Workers for almost a year now I’m horrified to read that SASW was percieved to be unsupportive of colleagues 18 months ago especially as it seems prior to understanding the situation fully and awaiting appropriate review. This was certainly not representative of members opinions, (who own and run the association). I would be very interested to hear what needs to happen in your or others views to repair that. We are keen to have more strong voices involved with us to fight for our members and profession and partner with LPF’s, Unison, SSSC, SWS, OCSWA etc. However, as the only independent SW association across the UK with a 40+ year democratic history the associations voice is still so important where other agencies are necessarily representing either more local or “organisational” perspectives and/or including all of the ever broadening care sector workforce. SASW is purely about supporting qualified and registered SW’ers across Scotland and that cannot be compromised. My experience in New Zealand over a decade was that SW association involvement was the norm and functioned as a meeting point for all social workers grassroots, 3rd sector, academic and managerial and had huge influence on Government and the Regulator. SASW though growing steadily has insufficient members to consider canvassing members on being standalone and therefore still benefits from the larger BASW structure where we in turn can nominate two directors on that board. Prompted by a paper presented by myself and Liz Timms and spearheaded by the new vice chair Maggie Mellon they are now undergoing a major review of governance to strengthen members participation and influence over strategy, voice, partnerships and staff priorities. I hope colleagues will (re)consider getting involved and helping us change and grow so we can keep standing up for each other and inspiring hope and creative, ethical, bold and accountable practice. – Alistair Brown

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  2. 2 David Orr April 24, 2015 at 15:23

    Alistair, thanks for the swift response. I would be more than happy to have a chat and I appreciate that a good deal of change has been happening since September 2013.

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