Empathy, anxiety and resilience: Lady Hale in the Supreme Court yesterday

“We do not have many women judges in the higher, law-shaping courts. We have even fewer judges, men or women, who are prepared to call themselves feminists…

…it makes such a difference how the story is told. Feminist judges will take different facts from the mass of detail to tell the story in a different way, to bring out the features which others discard, and to explain the features which others will find difficult to understand. …Feminist judges will set the story in a different context, a context which they understand but others may not.

Reading this book… is certainly a chastening experience for any judge who, like me, believes herself to be a feminist.”

(Lady Hale, Baroness Hale of Richmond, in the Foreword to ‘Feminist Judgments’, the book coming out of the Feminist Judgments Project)

I am not going to presume to analyse Lady Hale’s self-ascription as a feminist. But I am going to open my observations on B (a Child), Re [2013] UKSC 30 (12 June 2013)  by observing that the only woman ever to sit as a judge of the Supreme Court yesterday sat in a lonely minority of one as she gave judgment for the parents while the four male judges gave judgment for the local authority.

And to draw on her analysis above about how she might take a different approach, in a case involving the removal of a girl from her mother at birth.

‘…bringing out the features which others discard…’

Lady Hale’s is the only mention of empathy. Talking of the lack of co-operation of the parents with the local authority, she says,

“Perhaps this is not to be wondered at. Their original contact… was to seek an interim care order separating mother and baby without taking the usual step of a pre-proceedings letter explaining matters to them. Anyone who has had to leave a premature baby in a special baby care unit can empathise with the feelings of a mother who is prevented from taking her baby home when, miracle of miracles, that baby is well enough to be discharged from hospital. Of course, the first social work statement to the court explained why the authority was making the application. But the scene was set for a rocky relationship.”

Touché. The point about co-operation was fundamental to this case, because there was broad agreement that the child could only be removed if it was necessary, and that meant that alternatives would not work; and the reason that alternatives would not work was held to be that lack of cooperation.

Now, this point about co-operative social work is something of a hobby horse of mine. It seems to me fundamental to social work as a profession, and to the guidance under which we operate, that we try co-operation first, and compulsion as a remedy of last resort. I ask, “why don’t you try to seek consent”, and am told, “because we might not get it, and we’d have to act anyway”; and I ask, “but aren’t you more likely to get co-operation, and likely to get more co-operation, if you ask for it than if you don’t?” There are plenty of examples of the harm to a supportive relationship that can result from the premature use of compulsion.

And yet even though it is a hobby horse of mine, the fact that the “parents had been able to co-operate with a succession of workers who were supervising their contact with Amelia over the whole of her life” but had a particular problem with the local authority that had made pre-emptive use of compulsion had passed me by until Lady Hale drew out the detail.

“…a different context, a context which they understand but others may not…”

The risk of “over-medicalisation” was held to arise in this case. Here Lady Hale uses the first person plural “we, us” to identify herself as a mother:

“A child whose mother exaggerates and sees the worst and thereby exposes her to unnecessary medical investigations and even treatment may well suffer significant harm. But it will be a question of degree, depending upon its frequency and severity. Many of us are anxious mothers and take our children to the doctor far more often than we should. Some of us, of course, are not anxious enough and do not take our children to the doctor when we should. There was evidence that the mother was over-anxious during the early days when Amelia was in foster care and that she over-dramatised an occasion when Amelia was taken to hospital with breathing difficulties. On the other hand, there was no evidence at all that her older daughter had been subject to excessive medicalisation…”

More detail then: the mother was ‘over-anxious’ about the child who had been removed at birth, but not the child who had not.

“…to explain the features which others will find difficult to understand…”

Lady Hale twice mentions the notion of resilience:

“Every child is an individual, with her own character and personality. Many children are remarkably resilient. They do not all inherit their parents’ less attractive characters or copy their less attractive behaviours. Indeed some will consciously reject them. They have many other positive influences in their lives which can help them to resist the negative, whether it is their schools, their friends, or other people around them. How confident do we have to be that a child will indeed suffer harm because of her parents’ character and behaviour before we separate them for good?”

In a recent speech to the Socio-Legal Studies Association, Lady Hale explored the question whether judges should be socio-legal scholars, and along the way the place of academic research in judgments. Although she makes no mention of it, her reference to ‘resilience’ calls to mind an important and relevant piece of research published this year in the British Journal of Social Work. The authors, in words prescient of Lady Hale’s approach to unknown future harm, are specifically concerned that the policy trend towards early intervention is not underpinned by the scientific research:

“The focus on early intervention begun under New Labour has been sharpened under the Coalition. This is a future-oriented project building on elements of social investment and moral underclass discourses. It incorporates an unforgiving approach to time and to parents—improve quickly or within the set time limits. It is shored up by a particularly potent neuroscientific argument which has been widely critiqued from within neuroscience itself (Bruer, 1999; Uttal, 2011) but is unchallenged in current policy. Read carefully, the original neuroscience literature shows that the infant brain has quite remarkable resilience and plasticity when exposed to ordinary patterns of ‘chaotic’ neglect usually seen in the population referred to children’s social care (Wastell and White, 2012). In truth, if changes to the brain were the criterion for removal from parents, very few children would be removed. Yet, the rhetorical potency of the ‘now or never’ (Munro, 2011b, p. 69) argument is so great that it is supporting a drive towards early removal and has become a powerful and unquestioned professional mantra.”

(Featherstone, B. et al, ‘A Marriage Made in Hell: Early Intervention Meets Child Protection’ British Journal of Social Work (2013) advance access publication)

‘…to tell the story in a different way…’

So is this a judgment in which Lady Hale let her heart rule her head? Absolutely not. Hers is the longest judgment by some way, and rises admirably to the challenge that she alone faced, of having to explain why she would interfere with and overturn the decisions below. The other judgments have only to explain why they would not, and as one commentator (@suesspiciousmin) has already observed,

“For my part, I am unsure why the other Judges did not share [Lady Hale’s] views…”

It is something of a problem when it is difficult to tell from four majority judgments what the key points actually are. But working out the lessons from this case is indeed for me going to have to be an exercise in revision of legal principles with obscure Latin names: stare decisis, obiter dicta, rationes decidendi, per incuriam. Because the truth of the matter is that it rather looks as though Lady Hale’s judgment fits more naturally at the beginning, and her legal analysis is largely adopted. One might almost imagine them all considering her first draft and saying, “well, we agree with you about the law, but we can’t endorse the conclusion it leads you to in this case, you’ll have to go last, and what can we say first?”

On my quick review of the majority judgments, I counted 17 specific endorsements of the minority analysis (including paragraph 73 “As Lady Hale (who knows more about this than anybody) says…”), and two specific disagreements (on the approach to proportionality by an appellate court, and the feasibility of remission). There were also statements difficult to categorise as one or the other: “[my analysis] appears to differ… However” (para 95); “real sympathy with” (para 99); “in deference to Lady Hale’s conclusions, I see how it could be argued…” (para 101). The earlier judgments adopted the factual matrix from Lady Hale (e.g. para 51); the legislation (para 50); and her approach to naming (para 2, 3, 132). One of the judges specifically endorses both the majority and the minority approach to significant harm (para 56). He also goes out of his way to specifically endorse Lady Hale’s guidance to practitioners (para 56).

The truth of the matter is that it is the minority judgment that is truly useful. I commend it not only for its emotional intelligence (and because I agree with almost all of it!), but because of its lucidity, clarity of reasoning and its attempt to give real guidance to practitioners. Which leaves wide open the question, “but is it the law if she’s in a minority”.  A question which is difficult to answer but cannot be a resounding ‘no’ and may well be a qualified ‘yes’, given the nature and extent of endorsement from the majority.

Back to the Latin!

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.

When is guidance ‘statutory’ and does it matter?

In the beginning was section 7, Local Authority Social Services Act 1970:

Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.

The Act which set up social services authorities over 40 years ago also set up a peculiar type of legal authority for social workers. On the one hand, it was guidance rather than law. On the other hand, we had to follow it. It is not surprising that a challenge was going to come: how can something be binding if it is guidance? The answer has also stood the test of time. In R v Islington LBC ex p Rixon [1998] 1 CCLR 119 it was held:

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.

And there we have it: a peculiar kind of law emanating from the executive rather than the legislature. It is still guidance because, exceptionally and with good reason, we might deviate slightly from it; but it carries its own legal authority because, almost all the time, we must follow it.

Over recent years, other Acts of Parliament have created similar powers for executive-driven binding guidance; the guidance has been held to be binding on a wider range of people; and a plethora of both major and minor documents have been stated to have the status of what is now generally termed ‘statutory guidance’.

I think it is time to revisit the term ‘statutory guidance’. The label confirming the status ‘statutory guidance’ helped us for a while. I am not sure it does any more. I think we should be asking the question, is it ‘binding’ guidance instead. Here is why.

What is the status of non-statutory guidance?

All sorts of people throw guidance at professionals that does not bear the label ‘statutory’. It is of varying quality and usefulness. Some of it is driven by a political agenda, whether of politicians or campaigning groups. Much guidance emanates from employers – policy, practice and procedural documents.

As we weigh up the merit of what is being thrown at us, and decide whether to consign it to the bin, or to pin it to the notice board with fairy lights around it, we will make some important discoveries about non-statutory guidance. Some of it is darned good:

  • There are documents which merit our attention because they make the law more accessible;
  • There are documents that merit our attention because of the special expertise of the authors;
  • There are documents that merit our attention because they disseminate quality research that ought properly to inform our practice;
  • There are documents that merit our attention because they tell us what executive-driven guidance fails to tell us…

Such documents may not have the label ‘statutory’, but if they guide our path, improve our practice and keep us from legal error, they may have an important role nonetheless.

Six months ago, the High Court in Ali v London Borough of Newham [2012] EWHC 2970 (Admin) (30 October 2012) ruled on the status of a piece of non-statutory guidance.

The Department for Transport has produced guidance on the use of tactile paving to assist the visually impaired. The national guidance was developed in conjunction with and with the endorsement of Guide Dogs for the Blind and the RNIB.

So the guidance emanated from the executive, with the input of non-government expertise. The court ruled it had to be followed:

As to the principal contest between the parties, namely, the status and effect of non-statutory guidance, I recognise some force in [counsel’s contrary] submission that the court should be circumspect and careful so as to avoid converting what is a non-binding guidance into, in effect, mandatory rules. To do so would tend to subvert the intention of the guidance and would risk undermining the autonomy of the primary decision maker upon whom Parliament has conferred ultimate responsibility for discharging the function in question. However, this does seem to me to be yet another area which bears out Lord Steyn’s famous dictum that “in law, context is everything”. In my view, the weight that should be given to particular guidance depends upon the specific context in which the guidance has been produced. In particular (without intending to create an exhaustive list) I believe that it is necessary to give due regard to the authorship of the guidance, the quality and intensity of the work done in the production of the guidance, the extent to which the (possibly competing) interests of those who are likely to be affected by the guidance have been recognised and weighed, the importance of any more general public policy that the guidance has sought to promote, and the express terms of the guidance itself. In my view, it would be unwise for the court to descend into the intrinsic merits of the guidance, unless it was seriously contended that it was unlawful or very obviously defective. [my emphasis]

The caselaw has arrived at a significant point in relation to non-statutory guidance: we may be bound by guidance because it is authoritative and expert, rather than because of its label.

Can statutory guidance change our legal obligations?

There are a number of threads to pick up, to work out the effect that statutory guidance has on our legal obligations as social workers.

First, let’s not beat about the bush: by section 7 and similar sections, Parliament intended to delegate authority to the executive to create guidance that social workers should follow, irrespective of the wisdom of that guidance.

There are plenty of examples of guidance which have enlarged the law. That is to say, by embellishing the bare bones of the legislation, they have created additional obligations upon us. The various Codes of Practice we must follow (Mental Health Act, Mental Capacity Act, Deprivation of Liberty Safeguards) are examples.

It is one thing to suggest that guidance can enlarge the law, quite another to suggest that it can change it. Delegated guidance has to be consistent with the higher legal authorities from which it derives its own authority. That this includes human rights ought perhaps to be uncontroversial, but in fact two recent legal tussles have illuminated the interface of delegated guidance and human rights.

First is the Home Secretary’s frustration with the approach taken by the courts to deporting foreign nationals in the light of Article 8. In one bout of this ongoing struggle, the Home Secretary amended the Immigration Rules, purporting to tell judges how to apply human rights. These Rules have in common with statutory guidance that they emanate from the executive, and are not legislation. They go further than statutory guidance in that they are “presented to Parliament” under the primary statute, rather than simply deriving their authority from it.

As explained by Dr Mark Elliott in ‘A human rights reality check for the Home Secretary’, the Home Secretary’s attempt to tell judges how to think was doomed:

Quite properly, the Upper Tribunal has held that while the new Rules can “operate to enhance judicial understanding of the ‘public interest’ side of the [proportionality] scales”, they cannot relieve courts or tribunals of their obligation under the Human Rights Act 1998 to apply Article 8 itself.

Second is the decision last month in strategic litigation on the Police ‘Code C’, which treats 17-year-olds in detention as adults. The Codes are issued by the Secretary of State under part VI of the Police and Criminal Evidence Act 1984.The court ruled

that the Secretary of State acted in a way which was incompatible with Article 8 of the Convention in failing to revise Code C so as to distinguish between the treatment of an adult detainee and a detainee under the age of 18. Article 8, read with UNCRC, requires a 17 year-old in detention to be treated in conformity with the principle that his best interests were a primary consideration.

Statutory guidance, then, can usefully enlarge on the detail of our legal obligations, but cannot diminish our obligation to give precedence to human rights.

Appendix C to ‘Working Together 2013’

We have arrived at a point where authoritative expert guidance from the Executive that will help us to apply the law correctly might not need the prop of a ‘statutory’ label to make it binding; whereas even the label ‘statutory’ gives us no certainty that guidance is actually compliant with the law so that it should be followed.

That is the context in which, in an earlier blog, I boldly suggested practitioners might keep ‘Working Together 2010’ by their elbows. It had been modified over time to take account of developing learning; it set our lessons from research; it had whole chapters devoted to particular areas of practice difficulty; it incorporated lessons from the Laming reports; it attempted to set out how to comply with human rights principles; and it incorporated by reference a number of other specialist guidance documents. It was by no means perfect, but it was unquestionably useful. It served the purpose such guidance should serve, of drawing together in one place what we need to know to get it right.

One of the criticisms proffered of its successor guidance concerns Appendix C. Here, over 3 pages, is a list of “Supplementary Guidance”. But it is just that – a list. It doesn’t set the context of the documents, as Chapter 6 of ‘Working Together 2010’ did. Strictly speaking, it doesn’t even tell you whether you should follow the supplementary guidance. It’s more like a reading list.

This has led some to suggest or to fear that ‘Working Together 2013’ has downgraded the status of some of the specialist guidance that used to be incorporated, or incorporated by reference, in the older version. ECPAT, for example, has criticised the omission of the detailed guidance on trafficked children. That is only the tip of the iceberg of specialist materials that have been omitted in service of the goal of a shorter, pithier ‘Working Together’.

But I venture to suggest all is not lost. In this brave new world where we must look beyond the label, and check for ourselves whether guidance does what it says on the tin, the absence of authoritative detail may diminish ‘Working Together 2013’. But the documents mentioned in its Appendix C may be enhanced rather than diminished by standing alone.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.

See also:

Human rights have disappeared from ‘Working Together’

Losing control of the rudder?

‘Working Together 2013 ignores human rights and we must act on this’

Race To The Bottom Commissioning

Writers are obsessed not just with words but with wordcount. That innocuous, humble figure in the drop-down menu or nestling innocently in the bottom left hand corner of your screen should be a record of achievement. Instead, too often it’s a curse, an ever-tightening straitjacket on the creative flow. Blogging at least allows me to stretch out a bit as opposed to a commissioned piece for another site or magazine, but there’s lots of evidence to show people seldom read to the end of the article or  even past the opening paragraphs. If you’ve reached this point, you might well be in the minority.

Lately I’ve been a victim of the oppression of wordcount for a very different reason. Creativity has no place in the dark murky world of contract compliance and tenders.

These form an increasing proportion of the workload of any independent provider in fostering and residential work. I understand why they have appeared. After all, I’m old enough to recall the old days when social work had no systems for measuring its effectiveness, the days when we just knew and that got us nowhere. However, the last few months have taught me that while it appears we have swung to the other extreme with compliance coming out of every orifice, not only are we no nearer to truly demonstrating effectiveness, it is stifling innovation and good practice that children and young people need more desperately than ever before.

Two weeks ago I completed a tender for an authority in the southeast. I wrote 12,098 words. As each question was limited to 500 words, you can see how much ground they wanted to cover, except that this document, clearly designed by committee, was intensely repetitive. There are only so many ways you can say you are child centred, needs-based, work in partnership and strive to keep children safe.

Anyway, there were four lots to this tender for different groups of children but the responses were similar, so that’s 48,392 words in total, half a decent novel in another world. For this sought-after tender there would be at least 40 providers going for it, which means the authority will have to read and digest 1,935,680 words. The responses  must be processed to ensure the quality threshold is achieved, graded on a scale of 1 to 5 then compared to rank the providers in a tiered system.

My 48,392 words does not include any of the policies and procedures that were requested, nor any of the considerable business, insurance and financial information. Then this whole quality exercise counts for only 40% of the tender because 60% is price. This imbalance between quality and cost is common – one tender went 70-30 in favour of price.

This modern approach to commissioning is an exercise in futility. I simply do not believe that all my words will be read, let alone systematically compared with the other 1,887,288 that have been submitted. It cannot possibly be done.

I resent the fact that quality is less significant than price. More and more, authorities are looking to the bottom line of the balance rather than good practice when it comes to children’s futures. I accept that they don’t have as much money and that the cuts are not their fault. However, this is not the most effective way of using their scarce resources to provide a child centred service.

I’ve said before how prices can be kept down in the sector – you provide a placement without extra services like contact, therapy and other forms of support. Yet carers as well as children need those packages of care as the demands of fostering are ever more complex. A price-based approach does not encourage that.

With the contract comes compliance. Fine, I understand why this is important. However, what happens in practice is that each authority wants very similar information but in a slightly different form. The 5 outcomes are the same, the info they require ever so slightly different. In passing, you can work out the problems affecting every authority by the nature of their requirements. A heavy emphasis on, say, staff checks or allegations means they’ve had a real problem in the recent past.

The lack of consistency means providers have to collect different statistics for every authority. Providers are of course inspected by Ofsted but this seems to be irrelevant when it comes to the tenders and perish the thought that Ofsted might want stats that are in any way similar to those required by authorities. Ofsted for example uses ethnic monitoring categories that do not match with any other I have come across.

All of this costs money. Providers will have to pass on the costs of extra posts and databases in one way or another, and goodness what the local authority staff costs are in processing 1,935,680 words.

Three other southeast tenders are between 3 and 5 months late because authorities are unable to reach a conclusion. Two face legal challenges because they request information that breaches data protection legislation. Some simply do not realise that having a policy for everything does not guarantee better quality. One organisation was censured for not having a child protection policy on gangs, but what do they expect. “For children and young people we do all we can to keep them safe but if they join a gang, sod ’em.” It’s reached the stage where I would be tempted to submit that.

Forgive the ranting. It’s helped me let off a bit of steam. I’ve just spent the day on a Section 11 audit for a council in East Anglia. It’s about safeguarding and that’s important, really, I get it, but question whether this is the right way to go about it. Self-assessment. Frankly unlikely that I’m going to give a score of anything less than perfect. ‘Do you have a policy on such and such?’ Answer: “Yes I do have a policy on such and such.” It will keep them happy because this is the fourth one I have filled in and everyone has been happy with that answer so far. Doesn’t say how good this provider is or the difference good safeguarding and risk-management makes.

The Fostering Regulations require that organisations send their child protection policies to every authority they work with or could work with. I know another provider who sent out 42 responses and did not hear back from one of them, not even an acknowledgement. Utterly futile.

It has reached the point where I don’t know what piece of legislation it is Section 11 of and I’m past the point of caring. 1,974 words, if you’re interested. I’m hacked off – you can tell, can’t you – because it’s a waste, of precious resources and of my creativity and innovation as a practitioner. I have several ideas stillborn because there is simply no time. Putting them into action would improve the well-being of children in care far more than any of the compliance mechanisms do.

But if by some chance you’ve bucked the stats and reached this far, have a look at two recent pieces that are considered, definitely non-ranty but point out the consequences. “Commissioning services drives up costs” from Public Service Europe and “race to the bottom commissioning” from the Third Sector. Commissioning is important. It needs to focus on value and quality. There must be a better way. That’s 1213 words I wanted to write.

Rich Pickings In Foster Care

In January the Financial Times carried a piece about the investment potential for private companies seeking to invest in foster care. Entitled Fostering Sector Ripe For Consolidation, it begins in seductive fashion not with high finance or balance sheets but with the personal experience of carers who are clearly dedicated to the disabled child they look after. They don’t do it for the money – you couldn’t, because as they say it works out per hour at a fraction of the minimum wage. And that’s the last time children are mentioned as anything other than a commodity.

The economy of care has always been mixed and many private companies do excellent work, often with some of the most damaged children and young people. Yet the language of the balance sheet rather than the review form sticks in the craw and masks the realities of caring for vulnerable children to the standard they deserve.

Companies, including private equity, are attracted to the sector because of the potential for “cost savings” and “economies of scale”. Fostering is a “growth market” – Peter Connolly’s death and the increase in care admissions that followed becomes an investment opportunity.

Large companies from the health sector as well as private equity are gazing enviously not only at potential profits but also at the relatively high number of small to medium size firms who are ripe for a buy-out or as they call it, “consolidation”. Small-scale one or two person businesses, often started by social workers or foster carers from their spare bedroom, propelled the exponential growth in the independent fostering sector that began in earnest in the mid to late nineties. Now, IFPs care for almost 40% of children and young people in foster care.

However, many of the originals are keen to sell. Smaller providers feel pressured because of competition, the administrative tasks around Ofsted and contract compliance and the tender/contract process leaves less room for niche providers. They may also be coming toward the end of their careers and need to provide for their retirement. I’m not blaming them – these small companies led the way in the development of excellence in foster care practice in the days before and after regulation. With the big boys moving in, it’s hard to keep going.

This isn’t the world where we talk of standards of care, of healing relationships between carers and vulnerable children, not even of outcomes or aspirations. This is “the fostering space” where consolidation provides opportunities for profit, where large concerns, often multi-nationals from the health and, latterly, service sectors could invest and please their shareholders. This world has its own language: “It’s a classic private equity play. Private equity have been consolidating and investing in the fragmented domiciliary care space for the last five years and have begun to exit those investments to facilities management businesses. You can see something similar occurring in the fostering space.” I genuinely do not know what that means.

This is not new and I’ve written about it before on NSBS “Children In Care Are Big Business”, to the point where the FT article niggled away but I had not intended to go over old ground again. However, what made me write this was something I found out this week. Another private company (not the one mentioned in the piece) works at a profit margin of 30%.

That’s plain wrong. It may be irrational, it may be unusually high (although but I suspect it isn’t), for all I know I could be a wishy washy mung bean eating sandal wearing pinko liberal bleeding heart, but that’s an excessively high profit margin. As my piece from last year suggested, the best way to make money in fostering is to limit the services you provide for children and cut corners on matching, the process by which a child’s needs are matched with the capabilities of the carers. Take any placement, the money comes in and if it fails, blame the child or put it down to experience and move on to the next referral. Plain wrong.

The other way is to charge an inflated fee, which hurts cash-strapped local authorities struggling with constrained budgets precisely at the time when numbers in foster care are going up.

It chimes with other things that I have been told around and about. Carers from a private company who were told that allowances and services for children were to be cut back because local authorities were cutting their fees, when I know that company has increased the price it charges. A group of carers looking to change providers after the CEO arrived for a football match in his helicopter. Most tellingly, from my own experience on interview panels, the number of social workers seeking to move jobs because their professional standards have been compromised beyond redemption. Managers instruct them to take a placement when they know the match is not right.

I knew one of the candidates. She used to work for a small private company with a deserved reputation for long-term commitment and success with complex placements. The man who put this in place regretfully sold up after twenty years to a large national private company. Now, placement support services like therapy have been cut and she is forced to meet targets regardless of how appropriate the placement may be. That’s what is happening in the fostering space right now.

Quashing the child protection investigation: self-serving or breaching the dam?

Yesterday I posted on our case of AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin) (13 March 2013). I said,

“I want to focus for now, in two posts, on two criticisms that have inevitably been made about our challenge to Haringey. In doing so, I can highlight two points of wider relevance that the case has achieved, that are comparatively unusual.”

This is the second of the two posts. Perhaps unsurprisingly, the second criticism that I wanted to focus on has already been presaged in the comments on the first post. The first post focussed on criticisms that would be likely to come from those on the child-rescue side of the child-rescue versus family-preservation debate (if you’re not familiar with the debate, or with it being framed in these terms, there’s a very thoughtful post by @suesspiciousmin here: Family Preservation versus Child Rescue). This second post focuses on criticisms that have been expressed from the other side, and it’s this:

“They only won because they were social workers themselves. Ordinary parents wouldn’t have won.”

[Once again, if you don’t know the case I am talking about, you can read commentary from:

The Guardian: Couple falsely accused of child abuse win damages from Haringey council

The BBC: Haringey’s social services child inquiry ruled unlawful

The Telegraph: Baby P council under fire for launching ‘unlawful’ abuse inquiry

The Mail: Parents’ social service hell after one anonymous letter]

The facts

So, briefly, an anonymous allegation is made to Haringey Social Services about parents who, it later transpires, are child protection professionals. Haringey seek information from the GP, asserting that they are undertaking a child protection investigation, and also from the school. Nothing damaging comes back, the GP says explicitly that he knows them well and has no concerns. They are contacted by mobile, and immediately challenge the lawfulness of what has gone on before; their challenge sets in motion a course of events which results in Haringey saying they are escalating to a full-blown child protection enquiry, which in due course is closed down, suspected of having been malicious, when no concerns are found.

OK, now let’s address the “they only won because they were social workers themselves” argument.

Briefly – to keep the HCPC off our backs on protection of title – I should point out that only one of them is a registered social worker with protected title (read the judgment here), and press reports suggesting otherwise are inaccurate. In fairness, however, both are child protection professionals, so the criticism could legitimately be rewritten, “they only won because they were child protection professionals themselves”.

Knowledge of child protection procedures

There are different points to make about their knowledge as child protection professionals, and their status as such.

It is unquestionably true that their knowledge was relevant. As the judgment records, at first contact, they realised that what had gone on before first contact must have been unlawful (paragraph 36). And it took a detailed inside knowledge of child protection procedures to realise this.

You might say that knowledge didn’t help. Fuelled by their knowledge, they challenged as they did; their challenge prompted the escalation. But I think it is probably fair to say that knowledge did help. Because when a social worker says, “tut, tut, you really shouldn’t challenge social workers like that”, the fact that your challenges turn out to be legally accurate, and your sense of grievance legally justified is likely to be going to help your cause.

Which, I fear, is a real hurdle for people who face equally wrong procedures, and whose sense of grievance is equally justified, but who lack the knowledge to express it accurately.

That is not fair. It’s also difficult for parents to address. It’s all very well saying that parents can arm themselves with knowledge about what should happen if contacted by a social worker, but many parents, like these parents, are caught on the hop with no forewarning that there had been concerns expressed, ever. Moreover, we had a couple of day’s legal argument in the High Court about what should have happened – are we really suggesting that what should have happened should be part of some sort of citizenship training for everyone? I think not!

Of course, if you do have warning, you could take time to acquire some knowledge and take some advice. Again @suesspiciousmin has posted some advice (with appropriate caveats and disclaimers):

You can say, if you wish, that @suesspiciousmin is a local authority care lawyer, and I (heaven forbid!) am not only a lawyer – albeit an independent one – but a registered social worker also, so neither of us can be trusted. But my advice is this: if you want knowledge that is going to help you win a challenge as AB and CD did, don’t go to the conspiracy theory websites. Don’t try to have your cake and eat it: AB and CD chose to stay inside the system, and to use the system’s rules. If you don’t want to do that, don’t be surprised if you don’t then get a sympathetic hearing.

Rant over. But the point on knowledge is made. It is a real hurdle, it gave an inbuilt advantage to AB and CD. But in fairness, why should it be up to parents to have knowledge anyway? Which brings me on to…

Duties of social workers

As I regularly argue, it is a social worker’s duty not only to get the law right, but also to be absolutely clear – and especially when using compulsion – that service users should be allowed to challenge and test whether they are doing so. The HCPC Standards of Proficiency for Social Workers in England include that social workers must:

“9.2    be able to work with service users and carers to enable them to assess and make informed decisions about their needs, circumstances, risks, preferred options and resources

9.3     be able to work with service users and carers to promote individual growth, development and independence and to assist them to understand and exercise their rights

9.4     be able to support service users’ and carers’ rights to control their lives and make informed choices about the services they receive” [my emphasis]

These are enforceable standards through regulation. Social workers acting professionally should be clear with service users that they are open to having the legitimacy of their actions challenged, and indeed how to do so. The BASW Code of Ethics is clearer than the HCPC Standards that assisting service users to understand and exercise rights includes rights vis-à-vis social workers themselves:

“Social workers should give people the information they need to make informed choices and decisions. They should enable people to access all information recorded about themselves, subject to any limitations imposed by law. Social workers should assist people to understand and exercise their rights including making complaints and other remedies.” [my emphasis]

This did not happen in this case, indeed it rather looks as though the opposite happened, that an attempt to assert rights received a hostile reception from Haringey (that, at least, is my reading of sub-paragraph (8) of paragraph 71 of the judgment).

So in point of fact, the law does not expect parents to have knowledge, it expects social workers to convey knowledge to parents, with regulatory consequences if they fail to do so.

Status

An alternative view of “they only won because they were child protection professionals themselves” is that it was their status that mattered – that they got special treatment because they were not “ordinary parents”.

Come on, credit where it’s due! There were social workers on both sides of this argument. Whoever won, there were going to be social workers who won. Or, if you prefer, whoever lost there were going to be social workers who lost. And the plain fact is that the statutory social workers acting as such lost the argument to the parents.

Moreover, this is a precedent – it is a case that will bind courts on similar facts in the future.

It’s worth saying a little more about that for a moment. There is an inherent problem within the family courts about challenging wrong procedures. The problem is this: because of the principle that the child’s welfare is the court’s paramount consideration, the court cannot punish the local authority for procedural errors or malpractice by failing to make the right order for the child. So the understandable perception is that the local authority gets away with the procedural errors. Prominent examples include:

But this case did not take place in the family courts. An inherent problem for parents was addressed by bringing the claim in judicial review. It is often argued that this is the remedy for procedural challenges, but it seems often not to happen.

In my experience, acting also for other parents who are not social workers, there are a range of reasons why it is unusual. All are in some way a little sad.

  • One is that if you lost in the family courts, it becomes more difficult, and therefore more risky, to argue that the procedural injustice needs a remedy. Would the outcome have been different had the social workers got the procedures right, and if not, why do you need a remedy? The answer to the first half of that question is, “possibly yes” and the answer to the second half is “because procedural justice matters”. But there is no doubt that the outcome – if you leave it that late – is put into the mix in reviewing merit.
  • A second is that if you have been fighting to keep your child, whether or not in care proceedings, and have succeeded, you will often just want to put the whole horrific experience behind you and move on with your life.
  • A third is financial. For some, at least, there is non-means-tested legal aid in care proceedings. And care proceedings (again subject to exceptions) are not subject to the ‘loser pays the costs of the winner’ principle. Not so in judicial review. Legal aid, if available, is means-tested, and the general rule is that costs follow the event – i.e. that you run the risk of paying the local authority’s costs if you lose. Sad, because it brings sharply into focus that legal aid rules are relevant to whether you can access procedural justice.

Note, however, that none of this discussion about the difficulties in getting procedural justice amounts to saying, “they only won because they were child protection professionals”. It is not true.

Moreover, it downplays the quite important precedent that applies to anyone and everyone subject to similar procedures. This case sets out at some length the differences between initial screening, initial assessment and child protection investigations. True, it isn’t or oughtn’t to be news, as all three of these are clearly set out in the relevant statutory guidance ‘Working Together’. But the relevance and applicability of the statutory guidance was contested. The relevance and applicability of the statutory guidance was upheld.

And the relevance and applicability of procedural justice was not – nor should it be – confined to child protection professionals.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers. He acted for AB and CD in the successful judicial review of Haringey LBC discussed here.

Data-gathering: damned if we do, damned if we don’t?

[I realise I haven’t posted for a while, but given that the widely reported case yesterday where Haringey was ordered to pay human rights compensation for an unlawful child protection enquiry was our case, it might be surprising if I had nothing to say! In fact, there is a lot to say here about good social work practice, details the mainstream press haven’t descended into…

If you don’t know the case I am talking about, it’s here: AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin) (13 March 2013)

You can read commentary from:

The Guardian: Couple falsely accused of child abuse win damages from Haringey council

The BBC: Haringey’s social services child inquiry ruled unlawful

The Telegraph: Baby P council under fire for launching ‘unlawful’ abuse inquiry

The Mail: Parents’ social service hell after one anonymous letter]

The facts

So, briefly, an anonymous allegation is made to Haringey Social Services about parents who, it later transpires, are child protection professionals. Haringey seek information from the GP, asserting that they are undertaking a child protection investigation, and also from the school. Nothing damaging comes back, the GP says explicitly that he knows them well and has no concerns. They are contacted by mobile, and immediately challenge the lawfulness of what has gone on before; their challenge sets in motion a course of events which results in Haringey saying they are escalating to a full-blown child protection enquiry, which in due course is closed down, suspected of having been malicious, when no concerns are found.

I want to focus for now, in two posts, on two criticisms that have inevitably been made about our challenge to Haringey. In doing so, I can highlight two points of wider relevance that the case has achieved, that are comparatively unusual.

“Damned if they do, damned if they don’t”

Some have inevitably reacted that Haringey are “damned if they do, damned if they don’t”. Haringey gets it in the neck when it fails to intervene robustly, then when it intervenes too robustly. For example, comments on the Mail’s article (linked above) include “And if the child was at risk and they had done nothing?” and “No point in reporting any suspicion of child abuse then as a Judge says it’s unlawful to investigate. Crazy or what!!”

In particular, there are concerns about information sharing and data gathering. The judge in our case was scathing about Haringey’s unlawfully contacting other agencies without consent. He said,

“Issue 3: Was the data-gathering exercise before and during the initial assessment process unlawful?

76. The initial data-gathering exercise was unlawful in two respects:

(1) The initial request for data was sent to EF’s GP accompanied by the erroneous information that LBH was currently working with the family, that LBH was already undertaking a CYPS assessment and that confidential details including the possible presence of risk indicators of physical abuse, should be provided. In addition to these statements or implications being erroneous, no consent had been obtained from EF’s parents and it was not a justification to seek the information without consent that their identity was not at that time known since this statement was also untrue.

(2) The consent of the parents had not been obtained before the school was approached. Moreover, it was impermissible to post details of the referral on RIO to enable the school nurse to read them prior to obtaining the parents’ consent.

77. These were serious departures from permissible practice and these actions were unlawful.”

But isn’t “the child’s welfare is paramount: share, share, share” a lesson that is drummed into us?

Quite possibly so. And such an approach may be driven by an aversion to the risk that the next Baby P may happen on our watch, or a certain complacency that no-one ever challenges misuse of data in the child protection context and wins.

But it is wrong. The data-gathering that routinely occurs is often unlawful. It can be successfully challenged. There are good reasons it is unlawful. And it is not a case of “damned if you do, damned if you don’t”.

So, three questions:

  1. What does data protection law actually say?
  2. Why is that a good thing?
  3. How can we make sure we get it right both ways, i.e. share when we should, don’t when we shouldn’t?

What does Data Protection law actually say?

The Data Protection Act does not require us to share data. Rather, it sets out a limited set of circumstances in which it is permitted. One of these is with consent. A second is where it is necessary “for the exercise of any functions conferred on any person by or under any enactment”. This second one is widely relied on, but it requires what is termed a “statutory gateway”.

One such statutory gateway is section 47 of the Children Act 1989. In the context of a section 47 enquiry, we can share relevant information without consent (subject, of course, to complying with the relevant statutory guidance).

That being the framework, the judgment in our case begins to make sense. There was no section 47 enquiry. There was no consent. The data gathering was unlawful.

Why is that a good thing?

Even if you accept this is technically right (which the judge said it is!) you might think it’s a bad thing, getting in the way of effective child protection.

I rather think that depends how far you favour a particular model of coercive child protection – which I don’t. But the legal case for that particular coercive model is dubious. Partnership with parents is one of the principles underpinning the Children Act, and what this means in the context of data-sharing is set out in the statutory guidance ‘Working Together’ (the name says it all!) at paragraph 5.35,

“The parents’ permission, or the child’s where appropriate, should be sought before discussing a referral about them with other agencies unless permission-seeking may itself place the child at increased risk of suffering significant harm.”

So, there is a threshold test: will seeking consent place the child at increased risk of suffering significant harm? Data-mining without consent is predicated on an assumption not only that the child is at risk of significant harm, but that working in partnership with the parents will place the child at increased risk. Doing it routinely is sending out a message that we either have no ability to work in partnership with parents, or alternatively that we presume all parents will take it out on their children if we seek to work in partnership with them.

That message is dangerous. It is going to reinforce a stand-off between parents and social workers. It is going to reinforce mistrust and create a vicious circle in which co-operative working between parents and social workers is ever less likely. It is a bad thing.

So conversely, getting data protection right, as well as being lawful, and consistent with ‘Working Together’ is a good thing.

There is another reason it is a good thing. Human rights. Data-mining in child protection matters intrinsically invokes the Article 8 right to private and family life. As a human rights profession, we surely don’t want to routinely undermine human rights. In words of Eileen Munro I have quoted before,

“…liberal societies have placed a high value on privacy and confidentiality precisely because they present an obstacle to the State. While the State sees this in a negative light, the individual values it as a protection of their freedom. The professional ethic of confidentiality is seen by the government as an obstructive barrier to be removed in implementing their monitoring and assessment programme but this should remind us that the ethical principle is playing its rightful part as a protective barrier, defending the individual against excessive intrusion by the State.”

[Munro, Eileen (2007) Confidentiality in a preventive child welfare system. Ethics and social welfare, 1 (1). pp. 41-55]

How can you make sure you get it right both ways?

As the Information Commissioner explained in the context of Every Child Matters,

“The Every Child Matters agenda extends social care from protection to welfare. Although there are overlaps, this shift means that substantially more information will be collected and shared about substantially more children for different reasons. These different purposes raise different considerations from a data protection perspective. It is important that approaches used in the context of protection are not assumed to be transferable to the welfare context.”

[Protecting Children’s Personal Information: ICO Issues Paper, Information Commissioner’s Office]

Remember, then, there is a threshold test. Below it, you need consent. Above it, you don’t. Failing to seek consent when below the threshold is unlawful. Failing to protect when above the threshold is unlawful. It is not “damned if you do, damned if you don’t”. It is “damned if you do when you shouldn’t, damned if you don’t when you should”. Since the boundary between the two is clearly defined, you can get it right both ways and all the time.

Of course, you need to avoid other errors made by Haringey, you need to properly understand what is meant by significant harm, the boundary between child welfare and child protection, and the point at which section 47 bites. But that is another blog for another day.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers. He acted for AB and CD in the successful judicial review of Haringey LBC discussed here.

Adoption: Threats And Divisions As Gove Loses Patience

We’ve known for some time now that as far as working with children in care are concerned, adoption is the government’s absolute priority. A series of announcements over the past 15 months or so have focused on different aspects of the process. Last week came the latest and potentially most radical, where failing authorities could be stripped of their powers, which would be handed to the voluntary or private sector. There’s £150m purely for adoption, new resources but it’s not new money because it comes from cash previously earmarked for early intervention. Michael Gove just got serious.

The new money for adoption is £150m previously earmarked for early intervention, an area where Surestart and other preventative initiatives that aim to keep families together have already been decimated. A few days before this announcement, Eric Pickles stated he wanted to cut resources available for troubled families. The agenda could not be more stark – prevention and keeping families together is less important than adoption. With devastating irony, this most ideological of decisions uses money specifically set aside for evidence-based initiatives.

Politicians and practitioners agree that the shortage of adoptive carers has to be robustly addressed but surely not at the expense of other children in need. The government’s attempt to say that one sector in need is more important than another smacks of the way their divisive language around the welfare and employment debate tries to set working people against the unemployed, the rest against the “shirkers and skivers”. Child care is a continuum, with support for keeping families together at one end and adoption at the other. They may appear to be poles apart but in fact they are part of the same whole, far more closely related than is convenient for the governement to acknowledge.

Evidence shows that large numbers of children come in and out of care. In foster care, for example, providers have noticed that the rise in placements due to the higher numbers of children coming into care has been accompanied by an increase in the number of short-term placments, where children then return home. It is easy to forget that the original intention of section 20 of the Children Act where children and young people can be accommodated with the agreement of their parents was designed to maintain the ties between children and their families rather than close the door, and that families could use accommodation as a service, a week or two’s respite while they sort out problems with the help of their social worker so that the child can return to where they belong, in a safe, caring home. The Act became law in 1991 but sounds like ancient history. I may as well be writing in Sanskrit for all the sense those last few sentences make in 2013.

On a personal level, as someone who has worked across the whole spectrum but more recently in fostering and adoption, I feel dirty, as if I’m using money that’s been pinched from a child’s piggy bank. This is how awful this low, underhand and cold-blooded financial conjuring makes me feel.

The decision encapsulates all that is wrong in that dark, dank place where politics meets planning for children’s services. These are themes I’ve written about before. Prevention leads to better services and saves money in the long run whether it’s children in care, health and safety or gritting the roads before forecast snow falls. Yet for the government, any government not just this one, there’s little reason to invest in the long-term because another administration will reap the benefit, be it another government or perish the thought, another lot of politicians from another party. Yet we will know the success of our work with children in care only when they are well into adulthood, and anyway, even then people change as they grow older.

Adotpion czar Martin Narey, now Sir Martin, said this week that if even half the children on the waiting list are adopted, that would produce huge savings. He’s right of course, and he’s right to say that children should not have to languish in care with only the hope of a family to hang on to. Where I fundamentally disagree is that one element of the continuum should be prioritised at the expense of another. The twin goals of long-term savings and better choices for children and families for children in need of help from the state could be achieved by investment in early intervention as well as in adoption, not instead of. Also, even if the adoption backlog were cleared, there are others coming through the system in greater numbers than ever before. They too will need placements and the resources to find them. Further, adoption is not the only route to permanence. Evidence demonstrates the value of long-term fostering for many children and for their carers who receive support throughout the placement. These placements cost money but the children are worth it.

I am delighted that the government has made the welfare of children in care a priority, the first to do so in recent memory. However, it’s hard to escape the conclusion that for this long-term, complex issue they are seeking a quick win, the headline and the soundbite that goes with it.

More irony: government proposals in the pipeline won’t grab the headlines but are far more interesting and relevent for me as a practitioner because they directly address many of the problems in the existing system. Most important is the review of the court process that maintains a steadfast focus on the needs of the child within a clear timetable and minimises drift. Support for adopters will increase, with a look at personal budgets so they can decide what their family needs and how to sort out any problems. The purpose of the new national Adoption Gateway is to make it easier for prospective adopters to find out more. Changes in the inter-agency fee place the voluntary sector on the same level as authorties, thus widening the pool of adopters. Finally, there will be more organised gatherings of prospective adopters and children, sometimes called adoption parties. This is a direct result of an evidence-based study by the British Association for Adoption and Fostering that was properly researched, funded by the voluntary sector and fully evaluated. Taken together, these initiatives will do nothing but good. I fully support them. Evidence not ideology.

Every now and again any system in any organisation needs a good kick up the backsidebut in my experience, threats are far less effective than committed, considered leadership that understands a problem and sets goals for change. The government has quickly tired of what it sees as intransigence in the sector. Last week we heard that councils who do not respond will find adoption services removed entirely from them and placed in the hands of the voluntary and private sector. The appearence of the private sector is noteworthy. This requires a legislative change as private companies are not able by law to become adoption agencies.

Once more we are seeing divisions rather than partnership. The voluntary sector wants to work alongside local authority partners. Legions of dedicated, able local authority social workers want to find more adopters, not to be excluded from the whole process. We have to work closely with communities to find more adopters, for example more black adopters, rather than becoming ever more distant. Change must be accomplished by working with the sector not against it.