Some of you may know Celtic Knot is hosted in the building of Birmingham Friends of the Earth. The government has plans to radically reform planning laws, dropping many of the rules that could be used to oppose new development. Recently I was quizzed by colleagues at Friends of the Earth about what would happen to the status of all the existing guidance documents, textbooks and caselaw if this happened, so I was exploring what would survive, what would fall, and why.
And it occurs to me the same exercise could be done to Working Together. If it were reduced to 10 pages, as some have suggested, what would fill the vacuum?
To answer this, we first need to understand what its present status is, and how it has any legal authority in the first place. So, first…
A little history
When social services departments were created in 1970, the Act creating them made specific provision for the Secretary of State to issue guidance to social workers. A single court case, R v Islington LBC ex p Rixon  1 CCLR 119 has always contaned the definitive statement about the status of such guidance:
“While guidance and direction are semantically and legally different things and while ‘guidance does not compel any particular decision’ … especially when prefaced by the word ‘general’, in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”
Working Together was first published in 1999. A second edition came in 2006, and split it into two parts, statutory and non-statutory guidance. The same two-part structure is to be found in the current 2010 version.
So, the first half of Working Together has the peculiar status of statutory guidance, and the second does not.
Now, six propositions for what would fill the vacuum
1. The archived version?
Working Together doesn’t rely solely on being statutory guidance for its authority. In part, it explains what the law means. Provided it gets its explanations right, and the law itself – primarily the Children Act – isn’t changed, it will be just as relevant after it is scrapped. The Children Act will not have a different meaning overnight, so for a time at least the archived version will be an authoritative explanation of the Act.
So when we have queries that the 10 page document doesn’t answer, we can look at the archived version.
2. Local guidance?
We already have local guidance documents sitting alongside Working Together, a product of Local Safeguarding Children Boards and the Children Act 2004. By and large, and unsurprisingly given Working Together’s special status (and section 16 of the Children Act 2004, which requires LSCBs to follow statutory guidance), these closely mirror Working Together.
But if Working Together is 10 pages, local authorities will still want guidance for their employed social workers, but will have greater freedom to write their own diverging guidance. We can look forward to the guidance being different and the law being applied in local ways in Hackney and Hartlepool, Cornwall and Coventry.
Someone still has to decide what the law means in any given situation, and resove disputes about conflicting interpretations. And that someone will still be judges (excuse the grammar!) Faced with interpreting amendments and additions, dealing with new arguments, and deciding on the application of the law to new situations, judges will decide – it is their job do decide – what the law means. New precedents will be set and we as social workers will be bound to apply that new precedent.
Indeed, judges will not shirk from considering challenges to local guidance. Can the law possibly mean different things in Hackney and Hartlepool, Cornwall and Coventry? Judges are prepared to consider local guidance, and to declare that it gets the law wrong. And where necessary they will do so.
In the absence of a definitive statutory guidance document, and faced with burgeoning caselaw with which we need to be familiar, there will be a new role for an authoritative textbook to refer to. Probably looseleaf, capable of regular updating.
5. A computer manual?
Maybe the slimmed down Working Together could just say, “please refer to the computer manual”? After all, we have been through a phase when social work was allegedly moving from the social to the informational, and when an integrated children’s system was supposed to be central to protecting children.
This document – at 202 pages long dwarfing the statutory guidance in Working Together, but now happily apparently consigned to archive pages – represents an attempt to tell social workers how to protect children using computer process modelling. There were solid claims made for its benefits:
The aim of the Integrated Children System is to improve outcomes for children in need. It is a conceptual framework, practice discipline and business process that helps front-line social care staff undertake work with children and families in a systematic manner. …the expectations of the 21st century, require that ICS is underpinned by Information Technology (IT). IT will be a tool that facilitates practice and management operations.
For my part, I venture to suggest it is scrapping of documents like this – uninspiring, unreadable, irrelevant – rather than Working Together, that is central to freeing up social workers to get on with the job in hand.
6. Working Together 5th edition?
…is it just possible that some way down the line, what actually fills the vacuum created by the 10 page 4th edition will be a more focussed 5th edition? One that draws together the things we really need to know – procedure, lessons from research, and lessons from decided cases.