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“If You Prick Us, Do We Not Bleed?”: The Harassment of Cafcass and Local Authority Workers in Family Law Proceedings

Bianca Jackson, barrister of Coram Chambers, sets out the civil remedies available to persons subjected to harassment.

Bianca Jackson., barrister, Coram Chambers

 

 













Bianca Jackson, barrister, Coram Chambers

There is a limited range of either quantitative or qualitative evidence on violence against social care and Cafcass staff. However, a recent study by Community Care magazine suggests that in 2014, 85% of social workers were assaulted, harassed or abused in the course of their work. Violence against social workers and Cafcass staff is often regarded as "just part of the job", but at what point does offending behaviour become harassment and what remedies are available?

Intimidation and harassment (and their concomitant remedies) will usually fall under the rubric of the Protection from Harassment Act 1997 ("PFH 1997"). The Protection from Harassment Act 1997 is a mixed criminal and civil statute, and, as such, offers both criminal and civil remedies. Before setting out what civil remedies would be available to a social worker or Cafcass officer who has been subjected to alleged harassment, it is important to clarify how the statute and the resulting case law have defined harassment and, by extension, what a social worker or Cafcass officer would need to prove to obtain a remedy under the act.

Pursuant to s.1 (Prohibition of Harassment) of the PFH 1997, a person must not pursue a course of conduct that – (a) amounts to harassment of another; and (b) which he/she knows or ought to know amounts to harassment of the other. Therefore, in order to obtain a remedy under the act, the social worker or Cafcass officer who has been subject to harassment would have to evidence that he/she has been the victim of a "course of conduct", that the conduct in question constitutes "harassment" and that the service user who perpetrated the harassment "knew or ought to have known" that his/her behaviour was harassment. Each of these legal "hurdles" will be discussed in turn.

The Components of Section 1 of PHF 1997

(a) Harassment
It is worth noting that there is no comprehensive definition of harassment in the PFH 1997. It includes, but is not restricted to, "alarming the person" and "causing the person distress" [s.7(2)], and there must be intent to do so [Johnson v Walton (1990) 1 FLR 350]. In the relatively recent case of Re An Application by Gloucestershire County Council for the Committal to Prison of Matthew John Newman (No 1) [2014] EWHC 3136 (Fam), whereby Mr Newman was subject to an injunction preventing him from harassing members of the local authority, the President of the Family Division noted that "harassment" is an ordinary English word, and therefore recourse could be had to the dictionary to provide a definition. In those proceedings, Munby P held that the following was an apt definition of "harassment":

"To subject (an individual or group) to unwarranted (and now especially unlawful) physical or psychological intimidation, usually persistently over a period; to persecute. Also more generally: to beleaguer, pester" [29].

There are no constraints in the statute or case law on what forms harassment may take.  In other words, both direct communication and actions and indirect communication and actions may constitute harassment. For example, in Re An Application by Gloucestershire County Council [2014], Mr Newman was found to have "harassed" members of the local authority by sending fourteen emails to different local authority employees over a one month period, and sending a Facebook message to an employee's mother.

However, the above example does not mean that if a service user sends fourteen emails to a social worker or Cafcass officer, he or she is guilty of harassment; each case will be fact-specific. Whether the behaviour in question constitutes "harassment" will be for the court to construe, taking account of the circumstances of the behaviour (for example, the content and tone of an email), and will be a matter of fact and degree. Nonetheless, it is clear that the behaviour in question must be serious enough to warrant criminal liability, regardless of what type of remedy is being pursued.

Proving that a certain type of behaviour is "harassment" can be difficult, but even more so for a social worker or Cafcass officer, given the context (family proceedings) in which the harassment is taking place. According to the case law [see, for example, Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam)], it is of fundamental, constitutional importance that parents who feel aggrieved at their experiences of the family justice system be able to express their views publically about what they conceive to be failings on the part of the justice system (including the failings of Cafcass or a particular social worker), even if the criticism is expressed in vigorous, trenchant or outspoken terms, or even in language which is crude, insulting or vulgar.

Where the service user is merely criticising the social worker or Cafcass officer, even if such attacks are unjustified and/or abusive, the court is unlikely to order any remedy, including an injunction, pursuant to PFH 1997. According to the President in Re An Application by Gloucestershire County Council [2014], there is a fundamental difference between ideas, views, opinions, comments or criticisms, however strongly or even offensively expressed (which are lawful), and harassment, intimidation, threats or menaces (which are not lawful) [45]. A social worker or Cafcass officer seeking a remedy pursuant to PFH 1997 must therefore prove that the behaviour of the service user falls into the latter category. This can present obvious difficulties: where does criticism end and harassment begin? It will ultimately be a matter for the court to decide, but a social worker or Cafcass officer should have this in mind before deciding whether to pursue a civil remedy against a service user.

(b) Course of conduct
The second "hurdle" that a social worker or Cafcass officer would have to overcome in order to access a remedy under the PFH 1997 is evidencing that there has been a "course of conduct" [s.1(1)]. A course of conduct means that there must have been at least two incidents of behaviour that constitute harassment (though this can include an apprehended breach). It should be noted that conduct incorporates speech (s.7).

The fewer the number of incidents and the wider they are spread, the less likely that it will be that a "course of conduct" is established. For example, in Lau v Director of Public Prosecutions [2000] EWHC QB 182, [2000] FLR 799, the court held that two incidents four months apart were not a "course of conduct." Similarly, in R v Hills [2001] 1 FLR 580, the Court of Appeal held that assaults in April and October of the same year did not constitute a "course of conduct," not least because the parties were in a relationship between the alleged assaults. However, neither the statute nor the case law sets out a timetable for what comprises a "course of conduct"; each case will be fact-specific, and a social worker or Cafcass officer will have to prove to the court that a "course of conduct" has taken place.

It is also important to note that if a service user's conduct is aided, abetted, counselled, or procured by another person, it will be taken to be the conduct of both the service user and the other person (for example, if the service user instructs a friend or family member to harass a social worker or Cafcass officer on his/her behalf). Such conduct will also be taken to be conduct in relation to which the other's knowledge and purpose, and what he/she ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring.

(c) Known or ought to have known
Finally, in seeking a remedy pursuant to PFH 1997, a social worker or Cafcass officer would have to establish that the service user who perpetrated the harassment "knew or ought to have known" that his/her behaviour was harassment. This is an objective test: the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other [s.1(2)]. In other words, the test does not depend on the service user's knowledge or understanding.

Civil Remedies Pursuant to PFH 1997

A social worker or Cafcass officer who experiences harassment from a service user may apply for civil remedies under the PFH 1997, namely an injunction and/or an action for financial damages. Applications under the PFH 1997 are governed by the CPR 1998 Part 65 and can be issued in the High Court (Queen's Bench Division) or in the County Court in the district in which either the claimant or the defendant resides or carries on business (r.65.28).

Before discussing each of the civil remedies available, it is important to note that neither Cafcass nor the local authority is likely to be viewed by the court as a "person" for the purpose of the act and the court arguably does not have jurisdiction under the act to grant an injunction in favour of Cafcass or the local authority generally. In other words, a social worker or Cafcass officer would need to apply for a civil remedy on his/her own behalf; neither Cafcass nor the local authority can function as the applicant.1 Applying for a civil remedy pursuant to the PFH 1997 will inevitably incur costs, which will vary depending on the amount of information that needs to be prepared, whether the matter is contested, the number and length of any hearings, and so on. The cost of each claim will be case-specific but it is not unreasonable to assume that the costs of bringing litigation will be in the thousands, rather than the hundreds, of pounds.

When deciding whether to bring an action pursuant to the PFH 1997, a social worker or Cafcass officer should also keep in mind that notwithstanding that he/she is pursuing a civil remedy, the touchstone for recognising behaviour that constitutes harassment will be whether the conduct is of such gravity as to justify the sanctions of the criminal law. There is no lesser definition for the civil standard, though the standard of proof will be the civil standard (the balance of probabilities).

(a) Injunctions
Under s.3 of the PFH 1997, a social worker or Cafcass officer who is or may be the victim of the course of conduct in question may apply to the High Court or the County Court for an injunction restraining the service user from pursuing any conduct which amounts to harassment. As outlined above, in order to access this remedy, the Cafcass or social worker will have to prove, on the balance of probabilities, that the service user's behaviour was a "course of conduct," that the conduct in question constituted "harassment," and that the service user who perpetrated the harassment "knew or ought to have known" that his/her behaviour was harassment. It is integral that any injunction is in terms that are clear, precise and unambiguous; otherwise the court adjudicating an alleged breach might not enforce the injunction (Re An Application by Gloucestershire County Council [2014], [18]). Further, the injunction must be specifically addressed to a person (or persons) who will be bound by it.

A power of arrest cannot be attached to an injunction under PFH 1997. If an injunction is granted and the service user breaches the injunction without reasonable excuse, the Cafcass or social worker can apply for a warrant for the arrest of the service user [s.3(3)-(5), PFH 1997]. If a service user is found to be in breach of the injunction, which must be proved to the criminal standard, he/she is guilty of an offence for which he/she will be liable to a period of imprisonment not exceeding five years (on indictment) or six month (summarily) and/or a fine.

Conversely, breach of an injunction can be dealt with as a contempt of court, for which the punishment is a maximum of two years' imprisonment (the Contempt of Court Act 1981), though the standard of proof remains the criminal standard. The sentence must be proportionate to the seriousness of the contempt (Hale v Tanner [2000] EWCA Civ 5570, [2000] 2 FLR 879). It should be noted that the service user could not be punished with contempt of court for breach of the injunction if he/she is already being punished for it as a criminal offence.

(b) Damages
Pursuant to s.3, a social worker or Cafcass officer could also apply for damages on the basis of, inter alia, anxiety caused by the harassment and any financial loss resulting from the harassment. As above, a social worker or Cafcass officer will first need to evidence that that the service user's behaviour was a "course of conduct," that the conduct in question constituted "harassment," and that the service user who perpetrated the harassment "knew or ought to have known" that his/her behaviour was harassment. Further, he/she will also have to prove that damages should be awarded in the circumstances.

Before pursuing a claim for damages, there are a number of factors that a social worker or Cafcass officer should be advised to consider. Firstly, depending on the financial status of the service user, he/she might not have funds to pay any award made by the courts, making the claim a hollow victory. Whilst damages can be enforced through different means, including execution, attachment of earnings, a charging order on land, and an order for sale of property, obtaining the award is predicated on the service user having a job or any assets that can be realised.

Secondly, the amount of monies paid in legal fees to bring the claim might exceed the amount awarded by the court. This is particularly true where the claim is for damages under anxiety versus actual financial loss. As noted in Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34, damages for anxiety under PFH 1997 are likely to be modest. An exception to this is the case of Singh v Bhakar [20016] EW Misc 1 (EWCC), [2007] 1 FLR 880, in which the claimant was awarded £35,000 for the harassment that she suffered at the hands of her mother-in-law. However, it should be noted that the level of harassment that the claimant experienced and the subsequent effect that it had on her were extreme, warranting the substantial sum. Each claim for damages will be fact-specific.

PFH 1997: Conclusion

In summary, obtaining civil remedies under the Protection from Harassment Act 1997 will require a social worker or Cafcass officer to make an application and provide ample evidence that he/she has been subject to a course of conduct by the service user that constitutes harassment and which the service user knows or should have known constitutes harassment. Overcoming the first of these legal criteria will arguably be more difficult for a social worker or Cafcass officer than a layperson given the nature of his/her work and the family law context in which the alleged harassment is taking place. If the aforementioned stipulations are met, the court is likely to grant an injunction preventing the service user from carrying out further acts of harassment (such acts to be specified clearly in the injunction). Whilst a social worker or Cafcass officer might also be entitled to damages, it is unlikely that a substantial award will be made and any award might be less than the cost of the legal fees in pursuing said award. In the first instance, however, all incidents of harassment should be reported to the police, so that the CPS can determine whether to pursue criminal charges against the service user in lieu of or in addition to any civil remedies. 

Footnote:
1 The possible exception to this rule would be where a director/manager of Cafcass or the local authority could prove to the court that he/she had the same interests as his/her fellow employees and could therefore also represent them against the service user. Whilst there is case law to suggest that this argument has been successful in respect of companies (Daiichi UK Ltd and others v Stop Huntingdon Animal Cruelty and others and other cases [2003] EWHC 2337), it is questionable whether a similar argument would succeed in the context of Cafcass/local authority proceedings given the structure of the respective organisations.

15/11/16