The #Rotherham #UKIP fostering row: Further details emerge

Another day, another set of details emerge about the UKIP fostering row. This time courtesy of the Daily Mail. I’ve said before that I’m not comfortable with the way a sensitive case about vulnerable children is being played out and discussed in the media, but since other people are clearly going to comment on the case, I suspect throwing a tuppence forth from this little blog isn’t going to make much difference in the grand scheme of things.

Last week the Guardian alluded to tensions between Rotherham Council and elements of the local East European community, and yesterday’s Daily Mail fills in some of the blanks regarding this. Apparently the council has been the subject of protests from Slovakian families following a number of removals of children into foster care. These families are accusing the council of “child-stealing” for racist reasons and of trying to impose British values on them. This has led to protests from the Slovakian government who appear to be taking the side of the families.

Though the “British values” in question appear to be things like children going to school, not wandering the streets at 2am, and not living in a mice infestation.

The Mail being the Mail, they don’t appear to see any irony at all in, a couple of weeks after accusing the council of ideologically-driven fixations with multiculturalism, then granting a fairly uncritical interview with an alleged abuser, strongly suggesting that the council are racist towards East Europeans.

The words “shot at from both sides” spring to mind.

And naturally, there’s a rentaquote from John Hemming, an MP who seems to live in a strange parallel world where child protection proceedings are nearly always due to scheming, malicious social workers and hardly ever about averting another Victoria Climbie or Baby Peter.

These arguments appear to have been made in the courts as well as in the media and council meetings, apparently with some success. As the Guardian said,

But a family court judge ruled three of the children should be returned to the parents after the birth parents successfully argued that the council had failed in their duty to ensure the children enjoyed the linguistic right to learn and speak the language of their birth.

In the light of the Guardian and Daily Mail reports, I’m going to make a rough educated guess at the backstory here, which may or may not have to amended as further details emerge into the public domain.

It seems likely that the council would have been anxious to avoid a repeat of this judicial ruling. It also seems likely that they may have been vigilant for anything that would be immediately be pounced upon by the birth family’s lawyers, by the Slovak protesters, possibly even by the Slovakian government and media.

Something like the foster carers being members of UKIP. They may well have been doing a perfectly good job as carers, but that wouldn’t be what the family’s lawyers would say in court.

One could argue that the local authority should have challenged the judicial rulings, ignored the Slovak government and media, and served up the local Slovak community a hefty slice of if-you-don’t-like-our-rules-you-don’t-have-to-come-here. I’ll leave others to argue that one out.

But either way, the application of Occam’s Razor doesn’t require the council to be acting out of an ideological crusade about multiculturalism, or a Labour-inspired grudge against UKIP, in order to have acted in this way.

It certainly doesn’t require any David Icke-style conspiracy theories about Common Purpose.

Such a scenario is entirely consistent with the local authority trying to tiptoe around one set of legal, social and political grenades, and in doing so accidentally setting off a completely different grenade. And that’s my guess as to what’s happened. Eventually time will tell whether I’m right or wrong.

One thing this case does show is how complex and difficult fostering cases can be. When such cases are seized upon for political reasons, whether by UKIP or the Slovakian government, such complexities and difficulties are rarely grasped.

… And they’re off! But it’s a disappointing start for the Mental Capacity Act

In the line-up for the 2007 legislation Grand National we see the return of some old favourites.  Waiting for the starters’ orders are the Mental Health Act alongside the NHS & Community Care Act. We also see the return of the Chronically Sick & Disabled Persons Act and … surely not … Yes it is, the National Assistance Act is back for another plod around the course, surely he should have retired by now.  We also welcome along one of the favourites this year, in his first year of entry, the Mental Capacity Act is confidently waiting for what must surely be a resounding victory for all those he represents.   They’re under starters’ orders, and they’re off …

… but it’s a rather lack-lustre performance from the Mental Capacity Act 2005 (MCA).  I’m probably not the only one slightly disappointed by the sluggish start; 5 years into the MCA I have to admit that things probably haven’t gone as some of us may have imagined.  I was prompted to write this blog having recalled a recent occasion concerning a gentleman with a learning disability. He asked his carers for support to obtain an application form for a driver’s license and then to complete the form. Instantly, the carers decided that it would be far too dangerous for the gentleman to be driving around and, quoting the MCA, in his ‘best interest’ decided that it would be better if they didn’t support the gentleman to obtain and complete a driver’s license application form. I think the only correct consideration of the MCA were the two words, ‘best interest’ and even they were out of context! On every level, they failed to apply the MCA correctly or even remotely well. If  they had, they would have approached the decision from the assumption that the gentleman had capacity (which, interestingly he did) and provided the support he was requesting in the first place.

This of course isn’t an isolated incident and only recently was also reported about on the Community Care website.  Poor application of the MCA is widespread, it crosses all levels of care professions and it has to be addressed for the sake of those it should be protecting. If I were the MCA, I would be suffering from a complex right about now. Being misrepresented, misquoted, ignored, it’s enough to make even the strongest legislation question themselves!

Some organisations see the importance of MCA training, but where I often see a glaring hole is in people’s ability to apply the principles and use the MCA as the framework it was intended to be. People can usually quote phrases, provide general themes or even list the 5 principles of the MCA but that is often where knowledge and application stop. Carers and professionals alike should be discussing it daily, in team meetings, formally in supervision and informally. They should be applying it to all decisions being made and actions being undertaken on behalf of someone who may lack capacity. They should be questioning everything and inquisitively discussing whether any action or decision being made is the least restrictive or whether a seemingly unimportant decision made by carers or professionals has just had a significant impact upon individual.

The MCA doesn’t have to be a complex piece of legislation unattainable to anyone who doesn’t have a law degree.  It even comes with a very user-friendly Code of Practice to which of course, anyone working with an individual who may lack capacity must have regard for.  But it does have to be a piece of legislation that is used well and frequently by all concerned to ensure that we really do act in peoples’ best interest.

Jeremy Forrest and the Abuse of Trust

A couple of years ago, I was working as a nurse in child and adolescent mental health services (CAMHS) with a 16 year old girl. One day, out of the blue, she confessed an attraction to me.

My immediate response – other than to put in a referral to an optician’s, obviously – was to politely but firmly remind her that I was her nurse, that there was no prospect of anything but a professional relationship, and to suggest to her that she look for a boyfriend her own age. I also made sure that I didn’t work with her again unless there was a female colleague present.

Despite what you may think from Mills and Boon novels (those aren’t grounded in social realism? Who knew?) sexual relations between nurses and patients are strictly verboten under the Nursing and Midwifery Council Code.

20. You must establish and actively maintain clear sexual boundaries at all times with people in your care, their families and carers

If I hadn’t kept my boundaries, I wouldn’t have only been committing serious professional misconduct. I would also have been committing a criminal offence. The girl was 16, and therefore over the age of consent. However, she was in my care, and that would make it a crime under the Sexual Offences Act of “abuse of a position of trust”, which runs up to the 18th birthday. There are good reasons for this. The power of a teacher, nurse, social worker or children’s home worker over a young person can be enormous. With that comes the capacity to do enormous damage to vulnerable kids if boundaries aren’t respected and trust is abused.

I mention this because of a depressing slew of responses – often left in the comments threads to online newspaper articles – accusing the police and media of “hounding” a “young couple in love”. Some of those people seem to think if Jeremy Forrest had waited a few months then it all would have been fine – and for the reasons listed above, it wouldn’t. Others seem to regard the girl as some sort of teen seducer.

Have a look at this comment piece in the Independent. The author, quite rightly, takes the Daily Mail to task over a tacky, voyeuristic article that dissect’s Forrest’s relationship with his wife and with his pupil, by trawling their social networking accounts. If the Independent piece is good and well-argued, the comments left underneath are…..Oh dear.

As his lawyer said, his only crime was that he fell in love with a 15yr old…he was stupid the way he went about it, but I don’t think there will be any more than 5-10% of anyone who knows about this story that thinks he did it with any malice or force/manipulation of the girl, and that she didn’t know what she was doing. Again we’re casting judgement…but all I’m said is that I agree with Martin – love has no boundaries.

Was this a manhunt for murderers and war crimials or just a besotted couple? ………….Sad sad journalism indeed.

There’s been a few surprising voices added to this chorus. Peter Tatchell, for example, is someone I often agree with.

I subsequently had a Twitter exchange with Mr Tatchell. In all fairness, he was very clear that his view was that he’s not defending Forrest, and if he had a sexual relationship with his pupil, then he should be prosecuted for it. Mr Tatchell insisted his only objection was use of the word “abduction” for taking her to France.

Fair enough, but does Mr Tatchell really think any parent would agree that a teacher should be allowed to take their 15 year old daughter out of the country without their knowledge or permission?

Ironically, it’s the tacky Daily Mail article that gives a few hints that describing them simply as a couple in love is dubious to say the least.

[The girl], who describes herself on Twitter as a ‘self-loathing, music-loving, art and fashion-obsessed nostalgic loner’ was reported missing last Friday after failing to turn up at her school in Eastbourne.

A “self-loathing loner”? Admittedly it’s entirely possible to read too much into somebody’s Twitter profile. Even so, it does beg the question of whether that sounds like the self-description of a confident, beckoning Lolita.

One could argue – and admittedly this is speculation on my part – that it  sounds more like a girl who may be quite vulnerable. Perhaps even someone who might be susceptible to grooming.

Ultimately these are questions that will be decided in a court rather than in blogs, tweets and online comment threads. Even so, it ought to give those who depict the girl as an equal partner – or even a teenage seducer – some pause for thought.

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.

Julian #Assange – A sensible article that nobody will agree with

Over the past few week’s I’ve been idly watching the #Assange hashtag on Twitter and the screaming arguments going back and forth. I have no legal training, so what I think I’ll do is simply state the facts that are self-evident.

 

1. Julian Assange has been accused of rape and sexual assault. The actions he is accused of would be considered sexual assault both in Sweden and Britain.

2. The complainants have a right to their case being investigated. The Swedish police and judiciary have a right to investigate. Mr Assange has a right to be considered innocent until proven guilty.

3. The American government would, I’m sure, dearly love to “get” Mr Assange by fair means or foul, though they haven’t made any moves to date. Quite possibly they may be more than happy for him to be stuck in a London embassy for the time being.

4. The Ecuador government no doubt gains a certain amount of political propaganda by being seen to raise a middle finger to the Yankee Imperialist Great Satan.

5. The British government would hand Mr Assange over to the US in the blink of an eye if they asked. Probably far more quickly and easily than the Swedish would. The reason they haven’t is because they haven’t been asked to.

6. Under no circumstances should the British government commit a grievous violation of diplomatic immunity by removing Mr Assange from the Ecuador Embassy.

7. Likewise, under no circumstances should the Ecuador government get away with abusing the concept of asylum for a non-political charge such as rape.

8. The British government should not and almost certainly will not grant Mr Assange safe passage to Ecuador.

 

So, what should, and almost certainly will happen seems pretty straightforward. Julian Assange isn’t going anywhere. Either he spends the rest of his life in the Ecuador Embassy, or he leaves the building and gets put on a plane to Sweden to answer the prosecutor’s questions. As for any (at this stage, entirely hypothetical) extradition to the United States, that can be protested against when it’s actually proposed.

Oh wait, that’s far too rational. Nobody’s going to agree with any of that! Let me try again.

 

1. The accusations of rape are clearly bogus! I demonstrate this by repeatedly asserting it!

2. David Allen Green may be a staunchly liberal lawyer with a passion for human rights and who successfully defended the Twitter Joke Trial case. However, his analyses of Assange’s legal case clearly show that he’s also a CIA agent.

3. Green’s refutations of myths about the Assange case are not accurate because I am SHOUTING VERY LOUDLY!

4. Why won’t the Swedish police interview Assange in the embassy? Police are supposed to conduct investigations at the convenience of rape suspects!

5. How dare the US hypothetically try to extradite him to their territory! Those potential swine!

 

Is that better?

More on the “Child Stealing” Tin Foil Hat Brigade

It’s all kicking off in the comments thread to this post, in which I looked at the legal campaign of Chris Jarvis. Mr Jarvis has had his children removed by the courts and social services, for reasons that he hasn’t specified. His response to this is to mount a private prosecution against Leeds City Council for genocide.

For some reason I can’t quite fathom, his prosecution was struck out on the spot by a district judge. He now plans to take his case to the London High Court.

Mr Jarvis seems to be presenting himself as something of a legal expert in certain conspiracy theory circles. In this blog post he extols the virtues of acting as a Mackenzie friend (a lay person who acts in lieu of a lawyer during a court hearing).

As he says in the above video, “If you wish to see the end of the law of the lawyer…then we must make these people redundant and surplus to requirements….Let’s make the lawyer something of yesterday.” He had acted as a Mackenzie friend to one Norman Scarth, who had been imprisoned for contempt of court after recording a court hearing.

Mr Scarth appears to be something of a colourful character in himself. A World War Two veteran who has stood for election on various occasions, though his electoral campaigning in the past has got him arrested for shouting abuse through a loudhailer. In 2001 he was imprisoned for wounding a bailiff with a chainsaw.

In his YouTube video, Mr Jarvis makes great play of the respect he was given in the court when applying for a writ of habeas corpus for Mr Scarth. I must confess to being somewhat surprised by this approach. I’m not a lawyer, but I’m given to understand that it’s considered a fairly easy thing to get out of prison for contempt of court. Basically what you do is go before the judge and say that you’re sorry and you won’t do it again, thereby purging your contempt.

Mr Jarvis links to the Bailii page for the court hearing. Curiously though, he doesn’t mention the outcome.

Conclusion on habeas corpus

    1. In the absence of any basis upon which it would be proper to conclude that the Claimant has been imprisoned unlawfully or that his imprisonment has become unlawful I could not grant the writ of habeas corpus. As I sought to point out to the Claimant in the hearing on 15 August 2011 his interests are much better served by an appeal to the Court of Appeal Criminal Division. I am satisfied from documentation referred to by the Claimant and sent to me in the post either by the Claimant or persons acting on his behalf that the Claimant has lodged an appeal at the Court of Appeal. It is that court, in my judgment, which should adjudicate upon whether or not the finding of contempt of court and/or the sentence imposed for the contempt should remain.
    1. I do not pretend that I have dealt with every point which the Claimant made during the course of a speech which lasted about 45 minutes. I have, however, dealt with all of the points made which I considered had any bearing upon whether the Claimant was detained lawfully.

Purging contempt

  1. During the course of his oral representations Mr Jarvis raised the possibility of the Claimant applying to me to purge his contempt. In some ways this was a surprising application since in his own representations to me the Claimant demonstrated nothing but contempt for the order made by HH Judge Rose and, indeed for the judge himself. Nonetheless I felt it my duty to consider this possibility. I did so upon the assumption that I had jurisdiction to entertain an application although Ms Lambert was not able to confirm that I enjoyed such jurisdiction. I reached the conclusion that assuming I had jurisdiction to deal with the matter I should decline to do so. It seemed to me that the appropriate forum for any such application would be the judge who had found the contempt proved and who was, far better than me, in a position to judge the seriousness of the contempt and the genuineness of the Claimant’s application to purge his contempt. Alternatively, such an application could be made to the Court of Appeal Criminal Division. It is a possible outcome of the appeal that the court will uphold the finding of contempt and also determine that a sentence of six months’ imprisonment was an appropriate one. Even in those circumstances, however, the court might be prepared to entertain an application to purge the contempt. I raise that possibility for the Claimant to consider. Whether he makes such an application and whether the Court of Appeal entertains it is not for me to determine.

Or, to summarise, “get stuffed and use the proper channels”.

Mr Jarvis is at pains to point out in this conspiracy theory podcast that Mr Scarth subsequently had his sentenced reduced by the court. What he doesn’t mention is that it doesn’t appear to be down to anything he did. Rather, he was released early because the judge decided that “the nature of his personality disorder means that he is not one of those who is likely to see the error of his ways and, to use technical language, purge his contempt.”

Perhaps the lesson is that unless you can’t get legal aid and can’t afford a lawyer, if you’re before the courts then you’re better off instructing the qualified professionals. In his video, Mr Jarvis quotes a legal maxim, “He who fails to assert his rights has none.” Maybe he should consider another, “He who represents himself in court has a fool for a client and a lawyer.”

Hobson’s choice – voluntary or compulsory removal of a child?

CA (A Baby), Re [2012] EWHC 2190 (Fam) (30 July 2012)

By an extraordinary coincidence, it was only this week that I mentioned in a blog the case which came to national tabloid prominence four years ago as “the Nottingham baby case”. Extraordinary that I have cause to review it again, so soon, in considering a judgement given on Monday; and coincidence that @suesspiciousmin covered both cases and indeed his blog drew my attention to the case which prompts me to drag it up for the second time. His blog on yesterday’s judgement is here: http://suesspiciousminds.com/2012/07/31/i-need-two-volunteers-you-and-you-how-voluntary-is-voluntary-accommodation/

But, having dug out the Nottingham baby case so recently, I had to find myself reflecting that the issues in this week’s case have been aired before, and indeed to remarkably similar effect.

Hold on a minute, I hear you saying, I have no idea what you are talking about. What is the Nottingham baby case, and what happened this week? OK, one at a time.

The Nottingham baby case By an extraordinary coincidence, in late January 2008 a judicial review by a care leaver of her pathway plan was listed to be heard a few hours after she had given birth early, and her baby had been removed. Thus very publicly, in judicial review rather than family proceedings, the court was asked to, and did, order the baby’s return in the absence of any court order authorising his removal.

A full hearing of the issues took place two months later, and there, the local authority argued that, as the mother knew of the plan to remove her child at birth and had not objected, she should be treated as having consented to the baby being accommodated under section 20. The judgement G, R (on the application of) v Nottingham City Council [2008] EWHC 400 (Admin) (05 March 2008) robustly rejected this argument.

I analysed the case at the time, in an article in Professional Social Work magazine, which you can read here: http://www.celticknot.org.uk/publications/canishouldimusti.pdf

What happened this week? An expectant mother who had had previous children removed for adoption was subject to a plan for the same for her fourth. When the birth came there were life threatening complications, and among other things she received morphine during and after birth. The authority sought to accommodate the child voluntarily but she did not consent. She was asked again over the course of the day until later in the day, while dosed with morphine, she agreed and the child was removed. She challenged the lawfulness of the removal and judgement was given yesterday in CA (A Baby), Re [2012] EWHC 2190 (Fam) (30 July 2012).

This week’s judgement records an agreement to pay human rights act damages for the interference with her family life, and sets out forcefully observations on the use of section 20 in these circumstances. The court was not referred to the Nottingham baby case, possibly because it was a judicial review rather than a family case.

The issues in common

Both cases:

  • concerned the removal of a child at birth in accordance with a birth plan;
  • used voluntary accommodation under section 20 as the vehicle for achieving that removal;
  • involved challenges to whether consent was properly obtained;
  • asserted breaches of the Article 8 right to respect for private and family life;

Lessons on consent – a reminder

The Nottingham baby case resulted in a robust judgement which distinguished acquiescence from consent:

To equate helpless acquiescence with consent when a parent is confronted in circumstances such as this with the misuse (or perhaps on another occasion the misrepresentation) of non-existent authority by an agent of the State is, in my judgment, both unprincipled and, indeed, fraught with potential danger… Submission in the face of asserted State authority is not the same as consent. [paragraphs 55, 61]

This week’s judgement also distinguishes acquiescence from consent [paragraph 36].

Both cases also serve up reminders that the immediate aftermath of birth is not a good time for proper informed consent [Nottingham case at paragraphs 52, 57; this week’s case at paragraph 38].

Both cases also remind us that consent which is obtained in circumstances where the mother believes they have no choice is not proper informed consent either [Nottingham case at paragraph 55; this week’s case at paragraph 35].

Thus far, I am happy. Disappointed, perhaps, that the assertion of non-existent authority by an agent of the State is still being used to procure the removal of children with neither proper consent nor the sanction of a court. But if that is the case, then this is a timely reminder to get it right.

Lessons on capacity – a difference

Yesterday’s case raises the issue of capacity and consent. Effectively, it reminds us that you cannot consent without the capacity to consent. Since the European Court in H.L. v. THE UNITED KINGDOM – 45508/99 [2004] ECHR 471 (5 October 2004) holds that the absence of objection cannot be equated with consent, and those who for reasons of capacity cannot object still need an effective remedy, that judgement seems to draw together the Nottingham baby case and yesterday’s case. One may have concerned a capacitous individual not objecting and the other a non-capacitous one, but the principles which hold that there is actually no consent actually apply to both.

The difference is that in the absence of capacity, in effect there must be a court order, consent being impossible.

Lessons on choice – a problem

But there is, it seems to me, a problem with yesterday’s judgement. The Nottingham judgement explicitly recognises that section 20 consent is at least possible to authorise the removal of a child at birth for adoption – and even cites a precedent – X County Council v C [2007] EWHC 1771 (Fam) (20 July 2007).

Yesterday’s judgement seems to go further. It comes very close to saying that section 20 should not be used in circumstances where a court order could not immediately be obtained.

I am troubled by an issue that brings us up to the furthest reaches of the issues surrounding consent and choice, while at the same time engaging the very nature of social work:

If the only choice you have been given is to hand over your child voluntarily or face an application for a court order, is that a genuine choice? And if you have no real choice, is it effectively unlawful compulsion?

At first blush, a rights-oriented lawyer will deplore the effective compulsion that is involved in the Hobson’s choice between voluntary and involuntary removal. But I also have concerns to see my other profession, social work, engaging in more co-operative practice. Indeed, I think the original ethos of the Children Act – and indeed the statutory guidance accompanying it – assumed that social workers would be trying to work with, rather than against, families even where there were child protection concerns. And I think that such an approach would enhance social work’s standing also.

These concerns lead me to believe that voluntary care and persuasion really ought to be tools in the social worker’s toolbox. And it was with some concern, therefore, that I read @suesspiciousmin‘s analysis of this case which includes the useful summary that the court entered

into a discussion of whether a Local Authority can properly invite a parent to give s20 consent if the circumstances are not such that a Court would authorise separation, before concluding that they cannot.

That, I do not like. I think the more powerful argument is that this week’s case makes persuasion to the use of section 20 more fraught with difficulties and therefore less likely to be attempted, rather than that it outlaws it. After all, the judge does observe,

there will be cases where it is perfectly proper to seek agreement to immediate post-birth accommodation… secondly where a parent has always accepted that the child must be removed and has consistently expressed a willingness to consent (but not of course just to acquiesce)… the right to exercise parental responsibility by requesting accommodation under Section 20 and the local authority’s powers of response under Section 20(4) must be respected  [paragraph 36].

Even so, dissuasion of persuasion (!) is not necessarily helpful. Of course, using section 20 properly means:

  • never pretending that you could get a court order if you couldn’t;
  • always making clear that there are remedies, and parents have access to remedies to test the lawfulness of the authority’s actions and proposed actions;
  • not using a failure to co-operate voluntarily against a parent (this, of course, is particularly pernicious, as explained in this blog)

Surely, if used properly, invitations to section 20 consent should result in:

  • some parents giving informed consent, even though they fully understand that they need not and that they could win an argument that the care threshold was not met – because they are persuaded to work co-operatively with the authority in the interests of a child in need;
  • others withholding consent, and the child’s being made the subject of an Order, without reliance on the parent’s withholding of consent – because we accept that it is their right to challenge the lawfulness of our actions and we don’t hold that against them;
  • still others withholding consent and the child’s not being made subject to an Order – because, let’s face it, if the threshold isn’t met then we cannot and should not be using compulsion, we shouldn’t use compulsion simply in the best interests of a child, only to protect from significant harm.

Precluding the possibility of outcome 1 is not good news in my book. Outcome 3 is consistent with the rights of all involved. My fear is, that if section 20 is confined to cases where the significant harm threshold can be made out,

  • this is bad for children, because it removes a potential tool in the toolbox of social workers to help children in need, and reinforces the notion of ‘significant harm or nothing’ which plagues work with children and families;
  • it is bad for parents, who cannot accept support without the probable stigma of being labelled as bad parents owing to the threshold test being met;
  • and it is bad for social work, reinforcing confrontation because the very fact of social work involvement equates with compulsion and is confined to the more serious cases.

Hobson’s choice? No, the choice between voluntary and compulsory accommodation is a real choice that can benefit us all.

P.S. I have mentioned and recommended two other blog posts on the use of section 20:

And for tonight’s rant‘ from @familoo at http://pinktape.co.uk/ (which makes a strong case for the court’s supervision); and

How ‘voluntary’ is voluntary accommodation?‘ from @suesspiciousmin at http://suesspiciousminds.com/.

Those two blogsites have been very sweetly courting each other this week – or whatever it is that blogsites do when they contemplate partnership – blush, apparently – but even from my gooseberry’s perspective, I can heartily recommend both, as forming part of my regular and essential reading, and being incisive and quick off the mark in commentary!

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