Who’s responsibility is child protection? An analysis of the @mwilliamsthomas Twitterstorm

[Trigger warning: sexual assault/exploitation]

Another day, another Twitter pile-on. I love Twitter, but it has its drawbacks. Not least of these is the 140 character limit, which makes it hard to express nuances and complexities. When those complexities have to be squeezed into a tiny little box, misunderstandings happen, and those misunderstandings turn into flaming great rows, particularly on an emotive topic.

This morning the criminologist and TV presenter Mark Williams-Thomas tweeted

The story about the 12yr girl being raped in London in early hours of Sunday morning is horrific. But what was she doing out at that time?

The story he’s referring to is this one, and it does indeed look horrific. A 12 year old girl on the streets of Leyton after midnight, picked up by three older teenagers, taken to a secluded spot and gang-raped. Truly awful.

Williams-Thomas was instantly bombarded with angry tweets. I won’t list any @usernames here, but much of it was from a certain segment of Twitter that tend to have their outrage on a hair-trigger.

Disappointing victim blaming from @mwilliamsthomas…Maybe she was homeless, in care, missing?!

 

Whatever time, 12 yr old girl is out, for whatever reason, rape inexcusable. To say otherwise suggests victim culpability?

 

doesn’t really matter what she was doing out at that time – should be free to walk anytime w/o fear of attack

 

does it not matter at this stage? Questions like that deserve to be raised after any prosecution. Blinkered.

 

Infuriating that @mwilliamsthomas didn’t ask why men think its ok to rape girls & women, and instead blamed the 12yo victim.

The trouble with hair-trigger outrage though, is that sometimes the wrong targets accidentally wind up getting blasted with both barrels. Mark Williams-Thomas has an impressive CV. He’s a former police officer and child protection expert. He’s also the guy who exposed Jimmy Saville, and has presented numerous TV shows about child abuse and protection. If he’s a rape apologist and victim-blamer, the ghost of Jimmy Saville must be feeling rather let down.

Williams-Thomas quickly clarified his previous tweet.

Child was 12yr & therefore an adult had responsibility as to why she was out past midnight. My Q does not in anyway put any blame on child

This didn’t do anything to stop the piling-on.

Children are probably more at risk in their homes, you realise?

 

So you’re blaming her parents/guardians rather than the rapists. Well that’s fine then.

 

Obviously rapes only happen at night, when women/girls shouldn’t be out. Right? Oh wait…

 

but it shifts the blame AWAY from the offender.

And so it went on. 

When these sorts of arguments flame up on Twitter, sometimes its helpful to step away from the 140 character limit to a blog post, where such matters should be thought about more carefully.

So, whose responsibility is it when a child wandering the streets late at night is sexually assaulted by three individuals? And whose responsibility is it to protect children from such assaults?

To start with, and I hope this goes without saying, the first to blame and the worst to blame are the three alleged perpetrators. They have committed an awful crime and need to be subjected to the full force of the law. 

Despite the Twitter outrage, there is a legitimate question of why the child was left unprotected to wander the streets at night. The legal concept of parental responsibility makes it clear

If you have parental responsibility, your most important roles are to:

  • provide a home for the child

  • protect and maintain the child

Of course that’s assuming the child was at the parental home during the hours before the attack. It’s also possible that she could have been with relatives, or could have been a looked-after child. Whatever her circumstances, somebody had a duty of care to this poor girl, and for some reason, that duty of care has failed catastrophically.

There may be a relatively innocent explanation for this. The parents may have thought a door was locked…it wasn’t…the girl slipped out unnoticed. That’s possible. Another explanation is that she was simply being neglected. and while we don’t know the circumstances right now, it’s a question that needs to be asked.

I tried to remonstrate this point on Twitter, and got some angry replies.

A child is raped by two teenage boys, and the immediate reaction is to question the parenting of the victim.

 

suggesting that implies one caused the other. They’re separate issues.

Are neglect and sexual assault separate issues? Take a look at this list of children most vulnerable to street grooming by those well-known victim-blamers, the NSPCC. Unsurprisingly, it’s a list of the already-vulnerable. Missing or runaway children, looked-after children, kids with mental health conditions or drug problems, or who live in poverty or a marginalised community. The Rochdale trafficking case is a prime example of this, where kids from dysfunctional backgrounds were preyed on by the gang.

As a CAMHS nurse who has worked on child protection cases, this chimes neatly with my clinical experience. Sexual predators will home in on those children and young people who already have a pre-existing vulnerability. The looked-after child who keeps absconding from foster care…the boy who’s developing a drug habit and needs money…the lonely girl with low self-esteem and a row of self-harm scars on her arm…

…or the 12 year old girl who, for some reason yet unknown, has been left wandering the streets late at night.

So, when there’s a concern that a child may or may not be adequately cared for, who’s business is it? The police? Social services?

The answer to that question is very clear both in law and in policy. Child protection is everybody’s business. Schools, hospitals, police, CAMHS, churches, Scouts and Guides, military cadet forces….everybody who works with children has a responsibility to look out for signs of abuse or neglect, to ask questions and, if necessary, to make a child protection referral to social services.

Does a 12 year wandering the street after midnight sound like grounds to trigger a child protection referral? I suspect I’d be in a lot of trouble at work if I said it doesn’t.

And yes, I know all that “everybody’s business” rhetoric may sound like a Big Brother, nosey-parker Panopticon state. But the brutal truth is that if we don’t all look out for vulnerable children, then there’s other, far nastier people who will.

So, to summarise:

  • Parents and carers have a responsibility to protect their children.
  • Everybody who works with children has a responsibility to be vigilant for abuse or neglect, and to report it where necessary.
  • Twelve year old girls have a responsibility to…well, they don’t have a responsibility to anyone. They’re twelve. Adults have a responsibility to them

 

Outside of certain heated Twitter arguments, I don’t think this a particularly controversial statement.

 

 

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Why the Jeremy Forrest case is NOT a love story

[Trigger warnings: sexual abuse, grooming, victim-blaming]

Clearly the Sun must have either a short memory or a lot of gumption. Today they’re trumpeting the headline that Jeremy Forrest wants to wed the teenage girl he abducted, and the girl’s father would be happy to walk her down the aisle. Yesterday they reported that other teenage girls, some as young as 13, had received advances from him. The story focuses particularly on one girl who describes what sounds like some fairly classic grooming behaviour, while another was touched inappropriately and a third was receiving texts and online messages from him.

Really, Sun? From sexual predator to star-crossed love story in the space of 24 hours? Don’t you read your own newspaper?

I’ve read a lot of comments on social media trying to depict the Forrest case as some sort of modern-day Romeo and Juliet, in which the authorities have simply over-reacted. The trouble is, such suggestions are immediately scotched simply by reading the judge’s remarks prior to sentencing. There are almost no mitigating factors and a whole slew of aggravating ones.

Just to prove what absolute rot is being spoken out there, I’ve juxtaposed some excerpts from the sentencing remarks with a selection of quotes that I found through a quick trawl on Twitter. The sentencing remarks are in bold. The tweets are in italics.

“I really don’t understand how Jeremy Forrest is guilty of abduction when she willingly went with him”

“the evidence showed clearly how concerned your fellow members of staff were for your reputation as a teacher. They responded to the reports from students of your behavior and their own observations. Time and time again between Feb and July 2012, they warned and advised you and offered you support. You lied to them as to the nature of your developing relationship and denied sending the messages and photos that pupils had seen.”

“This is so wrong, she consented”

“You even complained that the rumours that were circulating were lies by X. You lied to her mother and complained that X’s silence in relation to those ‘false’ rumours was ruining your career and that she was harassing you. She felt mortified that her daughter was behaving in that way.”

“Wife and him were distant well before this happened. She didn’t and still doesn’t get on with her Mum. Jeremy was her saviour.”

“I am satisfied that you deceived X, too, about the true nature of your relationship with your wife.”

“Prosecution used terms like ‘paedophile’ and ‘grooming’ and the jury bought it.”

“I have seen nothing in the evidence which shows that at any stage you tried to provide proper boundaries between yourself and her, to discourage her, or let other staff deal with the matter appropriately. Indeed all the evidence shows that you encouraged her infatuation and provided opportunities for her to communicate with you and be alone with you.”

“Maybe she exploited his sensitive and caring vulnerability :-)”

“Your research into what might happen to you, if caught, is proof of the deliberate nature of your behavior.”

“I don’t really get how Jeremy Forrest got 5 and a half years, he didn’t exactly abduct her or do anything she didn’t want :S”

“On 20th September you took her to France. I suspect you went for your own purposes. In taking her with you, you subjected her family to appalling distress and concerns for her safety. You made no attempt to think of their welfare or let someone know she was safe.”

“he may have done it the *wrong* way, but he potentially saved her from suicide or some other fate on her own in France”

“You have contested the abduction charge raising a spurious defense, so that she had to give evidence, evidence very different in content from her original account and designed to support it. She had clearly received assistance in relation to what she should say.”

“He said sorry for failing her, and putting her through all the proceedings – that’s what a genuinely caring guy would do :-)”

“Where is that genuine care for her welfare that is the hallmark of a truly loving relationship?”

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.

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.

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.

Dissent among the ‘child-stealing’ tin-foil hat conspiracy theorists

We had some “interesting” responses to this blog post in which I highlighted the wild conspiracy claims by people like Brian Gerrish and Chris Jarvis. They seem to believe that social services, the police, the courts, CAFCASS, CAMHS and a whole slew of other agencies are involved in systematic removal of children into care. Not for child protection reasons, but in order to make money.

Having been involved in quite a few child protection cases, I actually find the proposal pretty laughable. Not only is the removal of a child a complex and difficult process, both legally and logistically, but some of the agencies supposedly in conspiracy together actually have quite dysfunctional relations with each other.

Brian Gerrish seems to have been touting this theory for some time. For reasons I’ve yet to fathom, he suggests it all involves a company called Common Purpose. Gerrish appears to believe it’s part of a conspiracy to use neuro-linguisitic programming to control the levers of power. Personally it looks to me like a slightly drippy provider of management courses for New Labour and David Brent types, but then maybe I’m just a dupe of the One World Government. I understand Mr Gerrish denies supporting the BNP, but from browsing various BNP blogs, they seem rather keen on him.

Recently he’s been teaming up with Chris Jarvis, whose children have been removed into the care of the local authority. His response to this was to mount a private prosecution against Leeds City Council for genocide. Mr Jarvis seems to be part of a movement that I’ve only recently heard of called the Freemen on the Land. To understand these “Freemen” a bit more clearly, here’s a segment from Rationalwiki.

Freemen believe they can declare themselves independent of government jurisdiction using the concept of “lawful rebellion”: that all statute law is contractual and therefore only applicable if an individual consents to it. They assert that what everyone else regards as “the law” doesn’t apply to them as they have not consented to a contract with the state,[4] even going so far as to claim they have a lawful right to refuse arrest if they do not consent. They insist that the government is a corporation, are obsessed with maritime law, and call themselves things like “John of the family Smith.” Essentially, they’re hilarious and somewhat less threatening sovereign citizens.

No freeman arguments have ever succeeded in court; some have even explicitly ruled that the term “freeman on the land” has no legal significance when the argument is raised.[5] Actually using the arguments gets people into worse trouble, including fines, asset seizures, contempt convictions and criminal records. However, this doesn’t stop freemen from claiming, without any supporting cases, that the arguments work.

With that in mind, it’s perhaps understandable that his prosecution for genocide was struck out on the spot as soon as it saw the light of an actual courtroom. But then that’s the trouble with going around saying you don’t believe in the law. Put that argument before the court, and you’ll quickly discover the law believes in you.

So, how’s their campaign going?

It looks like in the last couple of weeks they’ve had something of a falling-out. On Jarvis’ blog he publishes an e-mail conversation in which Jarvis accuses Gerrish of secretly being part of Common Purpose, and of being “a demon, a FREEMASON, and infact a man of DISHONOUR.” Gerrish in turn furiously denies the suggestions.

Chris

Very disappointed to see you trying to claim that I am Common Purpose.
Laughable and makes you look silly.

Not sure what your agenda is Chris but I am very disappointed in you
that as a victim of the system you attack others who are trying to help.

rgds Brian G

 

Jarvis goes ballistic back at him…

There is so much more, and so many people you have let down I cannot be bothered really going in to it all, but it is interesting that you only ever reply to people when it is for your COMMON PURPOSE.

We are all entitled to make the odd mistake here and there when seeking the truth, my mistake was trusting you at face value.

Everything you have purported to have stood up for like freedom of speech, you have in fact tried your best in a reverse FREEMASON style to undo, take for example your introduction of the thought crime “TROLL” not discriminating between abuse and constructive criticism in your labeling and judging of others

There’s more on Jarvis’ blog, if you have any particularly interest in reading incoherent rants in capital letters.

Oh well, as you reap so shall you sow. Mr Gerrish, you hitched your wagon to someone comes across as deeply paranoid, and presented him to the media as some sort of crusader and legal expert. And now he appears to have turned you. I can’t say I feel much sympathy.