Of puns and pictures and other distractions from the SERIOUS business of bloggage…

sketch for Xmas issue of Lamp & Owl...caption read '3pm on Christmas Day' ...possibly semi-autobiographical...

So this last week or so has been jam packed with stuff...

Last Tuesday, after a spot of actual paid work, I travelled by train to Birmingham, in fabulous sunshine and through fields full of skipping lambs, to listen to Louise Tickle delivering a powerful (by which I mean full on punch in the face zap! kapow!) speech as her take on the Bridget Lindley Memorial Lecture... Whilst there I delivered high speed gin powered tweet summaries of what was being said (still trying to fathom how a hotel can charge £12.10 for a single gin) ...blushed a little at the President of the Family Division saying he reads Pink Tape and Suesspicious Minds almost daily (along with the Transparency Project Blog) and then rushed back home on a late train just before turning into a pumpkin...

So, welcome back to Pink Tape Sir James. Please excuse the fripperies and reveries in this blog post. To anyone looking for serious content - I'm afraid this post is going to disappoint (or will possibly confirm your low expectations) - the transcript and podcast of Louise's talk will be on the FJC website soon we are told - that should do the job this post will not. There is precious little law* or gravitas to be found here today (said every judge I've ever appeared in front of with reference to my skeleton)...

in the meantime and betwixt hearings and criss crossings of the jurisdiction by train, things were moving apace with our grand plans for a house with an actual downstairs loo and enough bedrooms to accommodate all our children...there was an event explosion - the mortgage came through, the builder has a slot, the skip has arrived and the demolition is on Wednesday. What???!! I'm not mentally prepared! We've only been talking about this for ten years for goodness sakes...

And in the frantic chucking of mildewed life detritus we have been hoarding for a decade in the garage I found a box.... A box of drawings and bad poems and journals of roadtrips. Written and drawn by some other me before I had tattoos or wrinkles or children or cellulite or a mortgage....from when I was about 21 up until when I was about 23. A time when I had thought I was a sensible mature grown up. I have clearly been deluding myself.

I spent a good couple of hours on the living room floor with the whole excruciating lot laid out in front of me earlier this week. The journals are infuriating, embarrassing, immature, self absorbed, naive, stupid, illuminating and utterly unpublishable (Let us just say : PARENTS. NEVER let your daughters travel the USA on a greyhound bus with nothing but a credit card, too much confidence and a copy of Paradise Lost). The poems are mostly bad, occasionally terrible.... it was funny and strange and bitter sweet to reconnect with that other me - one thing I had forgotten was that as a teenager and young adult i always thought of myself as destined to become a writer. What a sop. That me thought by now I would be writing novels in a garret like Jo March somewhere... instead I sit hunched on a broken sofa prepping for trials each night waiting for the day i have a garret to call my own... but I guess I did turn out to be a writer of sorts in the end.

The pictures though were a revelation. They aren't particularly good pictures, and I recall vividly that I had to work really hard at some of them to achieve a reasonable standard in the final version - although I went to art college I could never reliably draw freehand. But they reminded me of a creativity that I always felt the need to express, and which I guess I probably now channel into this blog...

The pictures are mostly cartoons or preparatory sketches for cartoons that I drew when I was President of the Birkbeck Students' Union - for posters or for the Lamp & Owl student magazine (for those who don't know Birkbeck is a part time college under the University of London umbrella, where most of the students are mature students and they study for degrees in the evenings). At the time we had one knackered old Mac and no software to create or manipulate images on. If you wanted an image you had to sketch it, glue it to the page with the text on it and photocopy it. It was all very low tech...

Sometimes I've been asked why I took up blogging, and although there are some pragmatic reasons I often give (helping to keep up with CPD), I'd forgotten really how much of a continuum there was from this period when I was publishing through the Lamp & Owl, and then subsequently on my own website (before such things as 'blogs' were thought of) called diddlee.com which I coded in html myself and ran until some point after pupillage. I don't recall much of what was on it other than some very bad animations of London buses and a Bob Dylan song generator using a randomiser code I'd found somewhere...

I'm not going to share the cringing awfulness of my journals with you. That would be truly TMI. But the pictures are (mostly) harmless enough. I would take myself to task for some of them now...I don't know *what* I was thinking...

for some students at Birkbeck juggling the roles of employee, student, parent and superhero were a piece of cake...

Take for an example, this sketch of wonder woman which was intended for the Lamp & Owl - I don't remember if it was ever used. But it was intended to be about the amazing ability of students at Birkbeck (who, by the way weren't all women) to juggle children, career and college. I know now that the baby in the picture would have ended up with bilateral retinal haemorrhages from all that spinning...

This is a poster in the Lamp & Owl encouraging people to vote in the elections. I'd drawn each character, glued them onto the page and photocopied the lot...I'm not sure how I ever got anything important done, really...but one thing that my time at Birkbeck taught me was how elastic time is - it expands to make room for the amount of energy you have. That is the secret that Birkbeck students depend upon and one that I have depended upon too. This was a time when, although I had no babies, I was a little bit of a whirling dervish, working very long hours pouring all my passion into my sabbatical, and a little bit like a coiled spring. I met my husband at this time (he was my Vice President) - he was my rock then and is my rock now (Also, I'm still the Pres to his Vice Pres).

You may see where my fondness for puns comes from...

My favourite batch of sketches though, are these rough doodles of owls (the owl was the Birkbeck mascot).... I guess I shouldn't give up the day job...


caption reads 'the owl was a nocturnal bird of prey

caption reads 'how owls keep themselves amused in the wee small hours'

This was the end result. it went on the front cover of the Lamp & Owl with the headline under the roofline and the contents below.










































* no law

Crisis in Care – Crisis in Confidence?

thanks to howtostartablogonline.net

The desperate attempts by parents to get to grips with the rules of engagement with social services and family courts has been a preoccupation of mine recently - it bothers me that so many people are so confused and frightened and that they are turning, often in secret, to strangers to help them. Strangers who are often ill placed to offer informed, objective advice and who all too often whip them up into a frenzy, so they end up doing something daft.

I wrote an article on behalf of The Transparency Project before Christmas for the Family Law journal, and they have very kindly permitted us to republish it on The Transparency Project site. Now that it is up, I wanted to share it here too. It was also written in response to the Family Rights Group Care Crisis Review - there are many reasons why care numbers seem only ever to go up rather than down, but the corrosion of mistrust and fear is one reason which runs alongside all the usual suspects like the Baby P effect and a lack of resources.

Here is the article : Crisis in Care - Crisis in Confidence?

And here is why it still feels very current to me :

This last couple of weeks my feed has again been full of posts from the Facebook groups (I'm not sure if Facebook has changed its algorithm again or if my leaving a comment on something has bumped them back up the feed). Once again I'm torn by the desire to intervene to try and help and the feeling that this a space for parents to talk to parents without know it all lawyers sticking their oar in. But it's a tough balance. Of course I don't go around giving legal advice via social media, but it is possible to give general information and guidance. Sometimes it's easy to drop in a signpost to some service or information. Sometimes it seems helpful to gently redirect a parent to their solicitor for advice based on their actual circumstances rather than someone else's gut feeling or personal agenda. But sometimes it is just impossible say anything useful without ending up in a bun fight with those who carry their own trauma, anger and negative experiences (with the risk of being banned from the group and therefore unable to be of any use in future). This weekend for example, a woman is in hospital having just given birth to a baby. She can't make contact with her solicitor. She doesn't know whether to cooperate with the local authority's instructions to restrict her baby's contact with the father or not. She is being encouraged to wait and speak to her solicitor after the weekend by a few, but the loudest voices by far are those telling her to stand her ground and encouraging her not to cooperate - because the LA don't yet share PR. And they are winning. There are probably over a hundred comments now, and nowhere can I see any information about what risk the local authority are worried about - how anyone can advise this mother what to do without an appreciation of those risks (real or imagined) is beyond me. But they confidently do. And who else does she have to listen to right now, alone on a hospital ward, buzzing with hormones, frightened and separated from her partner?

I wonder if this vulnerable young woman, who seemed quite reasonable at the outset, will keep her baby or if s/he will be whisked away under an EPO because of her increasing belligerence? (And I do also wonder where the hell her solicitor is and why she hasn't prepared her client for this moment - though this too is something I don't have full facts on - it may have been an early delivery and the solicitor may be snowed in for example). And I wonder if anyone at the court hearing next week will appreciate that this young woman is doing her best to do the right thing, has given it a lot of thought - in spite of the apparent lack of a proper pre-birth plan to help her get her bearings - and has desperately sought guidance the best way she knows how - only to be given advice that is most likely to propel her towards the removal of her baby. Or will they just write her off as a non-engager?

So yes, now seems like a good time to repost this article. Because it all worries me very much.


PS I have been meaning to post a link to this interesting episode of Start the Week, with Stephen Pinker and Tali Sharot (amongst others), which I only caught the last half of but which gave some really interesting insights into the limitations of facts in influencing people. I am hoping to review Tali Sharot's forthcoming book 'The Influential Mind' on this blog in due course.


NB I've deliberately made the details of this vague enough to prevent identification of anyone involved. There will sadly be many young mums in hospital this weekend up and down the country in similar situations, and many EPO / ICO hearings at court buildings next week, just as there are every other week of the year. 


Feature pic (facebook in water) - creative commons licence, with thanks to www.howtostartablogonline.net

Talk to the hand – I’m not YOUR social worker!

Yes I Have Tried Talking To The Hand By Spooky Dad On Flickr (creative commons - thanks)

It's an old chestnut, the idea that a social worker is there for the child and NOT the parents. Social Work Tutor was peddling it before Christmas :


However, it is clearly not just SWT who holds this wrong headed idea about the role of a childrens' social worker either, as the recent Adoption Enquiry confirmed:

Social workers frequently construct themselves in pre-court proceedings as the social worker for the child rather than the family. A further level of fragmentation can get layered on later on with the social worker for the child seeking to communicate and work with a social worker who may see herself as the social worker for the adoptive parents...

The definition of the social worker role as being ‘the social worker for the child’ was a source of concern, as it often led to a lack of support for birth parents:

‘Children are part of families – a social worker cannot only be the child’s social worker.’ (birth mother)

So, it feels like this chestnut really does need roasting on an open fire until it is very very dead.

Now I'm a lawyer not a social worker, so I'm going to tackle this from a legal perspective. But that doesn't mean I'm writing in some abstract way which is not relevant to social work practice. Although some resist the notion, the truth is that law is fundamental to the practice of social work. Where state agents are intervening in the lives of the vulnerable it is law that gives them a framework to protect against oppression.

So, looking at it from that legal perspective : is it right for a social worker to say that they are there for the child not the parents (as they undoubtedly often do, to the faces of anxious and needy parents)?  TLDR answer : Nope. It is wrong (Also, holding up a card or saying words like those on the card to parents is just going to make your job a whole lot harder because an 'I owe you NOTHING' introduction is not the best way to build a mutually cooperative trusting relationship).

Longer explanation of why this is a wrong message now follows...

Let's begin with the Human Rights Act 1998 (HRA) and the European Convention on Human Rights (ECHR) which the HRA brings into our law. It is an overarching piece of law which governs everything that a local authority does, including the social workers. Much of what Childrens' Services social workers do on a day to day basis is intervening in the private and family lives of families - not just the children they are trying to protect, but their parents, siblings, extended family : by physically crossing their threshold, asking questions and delving into their past, their household goings on, their relationships, their interaction with other agencies, their past criminal conduct, their future hopes and fears... By assessing and reporting and sharing information. And of course in some cases by removing their children. Sometimes forever.

All of those actions are governed by the HRA because they are an interference with private and family life. If the state wants to stick it's nose into the lives of families (as it undoubtedly must do sometimes), it must stick that nose in only as far as is necessary and proportionate, and only where authorised by law (usually but not always it is the Children Act 1989 which gives that authorisation in this field). If the local authority oversteps the mark a human right may have been infringed.

The ECHR / HRA allows for the fact that sometimes it is necessary to step on one person's rights in order to protect another's, and that particularly applies in relation to children. But it doesn't mean that the rights of parents can be ignored. Social workers have clear legal duties under Article 6 (the right to a fair trial) and Article 8 ECHR (the right to respect for private and family life) to the whole family - to deal with them properly and fairly and to try where possible not to interfere with a family's privacy and family life, either by sticking in that big old corporate nose, or by separating children from their families (and parents from their children) - unless all less harsh alternatives have been properly explored and ruled out. The balancing exercise between competing human rights and the need to protect is a useful way of looking at things for a social worker - can I keep this child safe somehow without breaking up this family? It's what underpins the Re B-S balancing document that we now routinely see in social workers' final statements. But rather than a generic tick box exercise this should be a proper analysis, rooted in what is possible and what might work for this child, in the context of this family and the services the state could provide to avoid separation. Human rights should be a tool that underpins social work rather than an inconvenience to be gotten around, as I sometimes sense (and have been told) that it is.

Quite apart from the ECHR and HRA, the UK is a signatory to the UN Convention on the Rights of the Child (UNCRC), which should be taken as an aid to interpretation of the ECHR. The Preamble to the UNCRC states

the family, as the fundamental group of society and the natural environment for the growth and wellbeing of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.

Several Articles in the UNCRC also spell out that the rights of the child and of their parents are interwoven. Article 3 requires taking account of the rights and duties of parents when intervening to protect a child. Article 18 affirms the primary role of parents to bring up children, and the obligation on a State to assist parents to do so. Article 27 affirms the primary role of parents to make adequate provision for their children, and the obligation on a State to assist parents in making adequate provision for their children.

So, childrens' rights are significantly embedded in the family and difficult to separate from them (See The Christian Institute & Ors v The Lord Advocate (Scotland) [2016] UKSC 51 (28 July 2016) for an example of this in action, which Allan Norman wrote about on Pink Tape here). Although the purpose of assessments and social work is to protect and enhance the welfare of the child, the HRA means that state interference is limited to that which is either consensual or necessary, and a social worker exercising the powers and responsibilities of the local authority owes a clear legal duty to each of the parents and each of the siblings within a family unit.


But of course these international provisions and the HRA deals with broad principles and rights. As well as being necessary and proportionate state intervention has to be authorised by law. There are more specific pieces of law which describe and constrain how social workers operate and what they do. This is where the Children Act 1989 (CA) comes in. The CA gives local authorities various powers (you can) and duties (you must) to protect and promote the welfare of children. Those duties and powers are given to the local authority (the state) not the social worker, and the social worker is the agent of the state.

The CA is of course about children (the clue's in the title). But, there is nothing in the CA which entitles a child to 'their own' allocated social worker. This is a practice developed by local authorities in carrying out their functions under the CA and other Acts, where a family often becomes 'open' to social services because of a CA duty to assess the needs of individual children. As we shall see, it isn't quite as straightforward as saying 'My job is to assess the child / his needs, so I'm the child's social worker'.

Some of the duties under the CA are targeted at children and their families, notably children in need and their families. Take section 17, Provision of services for children in need, their families and others :

(1)     It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a)     to safeguard and promote the welfare of children within their area who are in need; and
(b)     so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children's needs.

(2)     For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2.

(3)     Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.... [my emphasis]

This creates a duty towards children in need AND their families, and a power to provide services to a specific child or any member of his family. It doesn't mention the allocation of social workers. In fact the only situation where the CA requires a local authority to appoint an individual worker to a particular child is in respect of former looked after children who qualify for a Personal Adviser (usually a social worker) under s 23D CA. Elsewhere, s25A does require a local authority to appoint an Independent Reviewing Officer to monitor the performance of the local authority in its duties towards the child. But no social worker. Further, in care proceedings, the court appointed guardian is a social worker appointed specifically for the child, albeit that their function is confined within proceedings (s41).

The 'paramountcy principle' contained in section 1 of the CA doesn't help either, not least because it applies only to the court (and only then when it's powers are invoked). However, the paramountcy principle and expanded welfare checklist in the Adoption and Children Act 2002 (ACA) do apply to the local authority as adoption agency when it is coming to a decision about adoption - and in those cases therefore the social worker carrying out the functions of the local authority must consider 'the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person', and 'the relationship which the child has with relatives ... and with any other person in relation to whom the court or agency considers the relationship to be relevant, including the likelihood of any such relationship continuing and the value to the child of its doing so, the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs, and the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.' (ss 1(4)(c) and (f) ACA). That is a clear reminder that in the work carried out by a social worker the broader family relationships should be squarely in mind, but it is addressed to the local authority as a corporate entity, and doesn't specify anything about the role of the social worker.

One view is that the reason that the paramountcy principle is not applied to the work of local authorities outside of proceedings is because the CA envisaged social workers working consensually with families, supporting parents to exercise their exclusive parental responsibility in ways that could be assumed to be in their best interests without reference to a court. The paramountcy principle is a guiding principle to assist with non-consensual decision making. As article 18(1) UNCRC tells us :

...Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. (Emphasis supplied)

Where a local authority becomes involved because its duty under s47 CA has been triggered, that duty is to investigate the child's circumstances to see if any steps need to be taken to protect him. Where consent is not forthcoming to enable an assessment to be carried out the CA provides various non-consensual powers to ensure the situation can be properly assessed. But of course even then, although the assessment is of the child, his circumstances include his family and his needs include his need for a relationship with them.

The social worker is the local authority's agent in respect of all its duties to children and their families. It may well be that childrens services 'allocate' a named social worker 'to' a particular child for all sorts of very sensible operational reasons. However those operational reasons cannot override the broader legal, and moral duties owed to families. Local Authorities must organise themselves in such a way as to fulfil their statutory and legal obligations to all those they serve.

If social workers operate under the mistaken belief (or policy) that legally they are the child's social worker, there is a risk that they will feel legally empowered or even obliged to adopt a 'child rescue' rather than 'family support' approach to their work that can skew outcomes.

The 'social worker for the child' approach is, in my experience, often used to justify the cutting off of support to a parent following the removal of a child or the end of proceedings (bar that nebulous thing 'post adoption support'). Once the particular child is 'sorted' (removed) the duty to the bereaved parents is seen (and often said) to end. They are left homeless or over-housed with insufficient income to meet their rent, distressed and often unable to function and to pick themselves up after the trauma of removal (often not for the first time). Such parents, in despair, often relapse to drug or alcohol use, or fall pregnant through chaotic lifestyles or intentionally in a desperate bid to ease the pain. They have nothing else left.

It is only in recent years, through projects like FDAC and PAUSE that some are beginning to grapple with the consequences of that - parents left in pain and without support and involved in a succession of repeat care proceedings as they are condemned for repeating the same mistakes rather than helped to find a different way. See various judgments of HHJ WIldblood QC for an expression of judicial frustration at the futility of obtaining psychological reports in care proceedings that tell the court a parent needs treatment which is too time consuming for the subject child to wait for, and which has almost inevitably not been provided before the next child comes along, because in between children social services see themselves as having no duty (though HHJ Wildblood's judgment in Gloucestershire County Council v M & Ors [2015] EWFC B177 (5 November 2015) provides a rare example where a LA did agree to fund therapy post-removal). In fact local authorities DO have just such a duty under s17 CA combined with Schedule 2 (7) :

Provision to reduce need for care proceedings etc

Every local authority shall take reasonable steps designed—
(a)     to reduce the need to bring—
(i)     proceedings for care or supervision orders with respect to children within their area;(ii)     criminal proceedings against such children;(iii)     any family or other proceedings with respect to such children which might lead to them being placed in the authority's care; or(iv)     proceedings under the inherent jurisdiction of the High Court with respect to children;

It isn't a specific duty to provide therapy, but clearly the provision of therapy for parents who are likely to parent again, or the setting up of projects to help those likely to struggle with parenting are vires services for local authorities. Projects like PAUSE and FDAC are beginning to demonstrate that this sort of project may in any event be fiscally responsible because they will reduce the financial burden on the local authority in the long run.

Perhaps the most important provisions of the Children Act are the ones most easy to overlook : parental responsibility (sections 2-4). A social worker owes a duty to the parents of a child with whom she is working, or who she is assessing - because whilst the child is unable to deal with own affairs the parent is their proxy decision maker - they hold parental responsibility, and with that hold the rights to make decisions for the child unless the law or a court restricts that right (for example through the exercise of police powers in an emergency or through an EPO, ICO or other order). Even if a care order is in place parents retain their parental responsibility and the local authority may only 'trump' the parents' PR where it is necessary. So again, on that basis the local authority owes a duty to the parents.

The social work regulator, the HCPC talks in terms of duties to 'service users', which is a more constructive way of approaching the task at hand : a local authority owes duties to provide a whole host of services to everyone living within its area, not just to children. We are all 'service users', whether of s17 type services or otherwise (and the HCPC define a service user as anyone who uses or is affected by the services). As residents in a local authority area the local authority is democratically accountable for the services it provides, and the Children Act 2004 requires each local authority to appoint a Director of Childrens' Services and a lead member for Childrens' Services to ensure that voters (including the parents of children in receipt of services) can ensure accountability in this area of work. So, from individual social worker, right up to the senior management or elected representatives, the duties owed encompass not just those owed to a child, but those owed to all the family.

Alright. That's enough law. Let's have some home truths : in my opinion as a human rather than lawyer, and regardless of the strict legal position, an assertion by a social worker that they are NOT there for the parent discloses a pretty poor level of insight into family functioning and into childrens' needs (and rights) to family life. The focus must always be on the needs of the child, but tunnel vision is unlikely to enable a social worker to meet those needs in the fullest way - either for that child or any siblings who may follow in the future. Good social workers offer a hand of support not a hand that dismisses a parent as an irrelevance.


Thanks to Allan Norman @celticknottweet for his input into this piece (ideas his, mistakes mine).


Feature pic : Yes I Have Tried Talking To The Hand By Spooky Dad On Flickr (creative commons - thanks)