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)

The digital revolution…rolling slowly towards us…

Toshiyuki IMAI on Flickr

I've been meaning to write for a number of months about how I have been getting on with life without paper bundles. But I've had a minor setback in that pretty much ever since investing in a super shiny device on which to display all singing all dancing electronic bundles I have been delivered of nothing but pages and pages of documents in broken lever arch files which are fifth generation copies (and as such all the text is slightly fuzzy and sliding off the page into oblivion). I am beginning to wonder if the wheeled suitcase industry mafia are not putting the thumb screws on all the solicitors instructing me, to ensure that I continue to prop up their revenues as I have done for the last fifteen years. Maybe they have got wind of my attempt to remove suitcases and large handbags from my life by transferring to a backpack (thanks to a niggling suitcase/bundle induced shoulder complaint), and are wreaking their revenge.

 

It's ironic really - I've spent years grumbling about bundles delivered only electronically (usually because they arrive, russian doll like, in a million separate pdfs nested in several tiers of several threaded emails), which then have to be printed off in no particular order at the eleventh hour. But now I want one, I can't get an electronic bundle for love nor money.

 

Before the e-drought, I did a few hearings / trials using pdf Expert on my laptop before taking the plunge and investing in an ipad pro - it worked reasonably well. On the first attempt I had my bundle in hard copy in a suitcase at the back of court as a comfort blanket, but I didn't need to open it once. Somewhat ridiculously, with only one device, I had to resort to keeping my notes in a blue book, whereas I would ordinarily have typed them - you really do need two screens to really go paperless : one for the bundle and one for your xx notes / running log of the hearing. I was somewhat deflated to find that, having ditched paper, I kept being handed more and more late documents in hard copy as the hearing progressed, so that by the end of the week I had a whole file full of assorted badly photocopied and unpaginated documents that I had to keep switching to and from. But in the grand scheme of things, a ring binder's worth of irritation is nothing compared to a mighty suitcase full of back ache.

 

I've conducted a few trials / hearings where I've brought the core papers in hard copy but have been able to leave behind the stuff I'm 99% certain I won't need to refer to on my laptop, thus enabling me to travel with my cabin sized wheelie rather than my corpse sized one. This in itself is a super bonus.

 

So yes, I'm a bit frustrated that, after a promising start, I have had a limited opportunity to get to grips with e-bundles. I had hoped by now to have mastered the techniques for navigating large bundles so that I would feel confident enough to go paperless in a larger trial. Hey ho. I'll get there eventually. And in the meantime other colleagues not so jinxed as I are popping up all the time to rave about how a bit of practice with an ipad pro has revolutionised how they work. So I think the momentum is picking up, and we are beginning to reach the tipping point where all of a sudden one day ebundles will be the norm, and we will all be expected to be competent with them. I'm certainly not going to be the one left on the shore when that happens.

 

For what it's worth, I reckon that this is actually not as daunting a self-education project as I thought at first it might be. Granted, the cost of an ipad pro is pretty eye watering, but the software costs are minimal (pdf Expert seems to be used by most) and the navigation is a lot easier than I had thought it might be - as long as you have a properly indexed bundle where the majority of documents are in native pdf format (jargon alert - this means that the computer reads the file as a text document rather than an image, so it can find words in a text search and you can highlight particular lines of text). Bookmarking and highlighting features are reasonably easy once you've got to grips. The most irritating part of this new tech is the hardware itself. As someone who has avoided an ipad for years, I find its way of storing documents and really hard to get my head around. And of course, now I have a touch screen I keep pawing my laptop and wondering why it won't work. Or staring at the screen trying to remember how to make it scroll without touching it... But this too shall pass...

 

Ebundles really are becoming a thing in public law proceedings, and although some local authorities produce more user friendly bundles than others, this is the area in which ebundles are gaining most traction (no doubt because of the applicant is always a corporate party which is represented rather than a privately paying individual or litigant in person). My recent run of paper bundles has coincided with a run of private law cases, where ebundles seem to be somewhat more of a rarity. See recent HMCTS blog here for news on the public law front.

 

Apologies for the not very exciting reading. Whilst I acknowledge that an absence of me spitting feathers about idiotic, awful, impossible technology makes for rubbish blog posts, the truth is that nobody wants to see me when I'm in full Technology Rage mode. Even virtually. So far I have not had one single tantrum. Hurrah!

 

 

Feature Pic : courtesy of Toshiyuki IMAI on Flickr (creative commons licence - thanks)

Goodbye Sir Henry

There has been an outpouring of affection from the legal and legal blogging community following the recent death of Sir Henry Brooke. Apart from a number of lovely obituaries in the national press (see for example this one in the Guardian), there have been a number of tribute posts from legal bloggers. Because although Sir Henry was not the first of us, he epitomised what many of us wanted to achieve, and shared many of our motivations.

He hadn't been blogging and tweeting all that long, but Henry Brooke had managed to find a human and accessible way of communicating and of making use of social media that attracted readers to his posts. And he did all that without dumbing down.

In April last year, having been at it for two years, Sir Henry wrote a blog post reflecting on his motivations and the degree of success he had achieved.

One commenter from Hong Kong had written in praise of Sir Henry's blog that

The writing of legal history/legal anecdotes through the internet will make them more accessible to the public.  Picking up and buying a book written by a judge may be a difficult thing for most people/lawyers, but reading articles online for free is a completely different story.  People may be researching some legal terms or background of certain legal icons by Google and they can read online articles with ease. 

Sir Henry was pleased with that, because his driving force was

to demystify the practice of the law; and

to show that although some things undoubtedly change, at the heart of our legal and judicial system there have always been (and I hope always will be) many, many men and women who have been doing their honest and honourable best to provide a system of justice that meets people’s everyday needs;

and to try to show that although the practice of the law will always be hard work, and although we are in a certain sense facing unprecedented obstacles and difficulties today in the absolutely vital corner of the market that is dependent on public funding, it can and also should be fun.

Sir Henry may not have realised it, but to read this, and to see it played out across blog after blog by a hugely respected former senior judge, is such an encouragement to those of us who are plugging away at our own little corner of legal blogging, chuntering away hoping that somehow we will demystify the practice of law and bring a smile occasionally too. When I first started blogging lawyers looked askance, or would say mockingly 'Oh, you write that blog don't you?'. When I first wrote a book for litigants in person it was seen by some colleagues as a sort of treachery. But if engaging with ordinary mortals in ordinary language about law, through blogs and social media is good enough for Sir Henry Brooke, then it's good enough for me. When Sir Henry Brooke took up blogging, legal blogging came of age.

Of course, even before he took it up himself, Sir Henry had an impact on legal blogging through his support of BAILII, a resource upon which we all depend and draw - and which I hope the legal blogging community add value to.

That first commenter also said this :

most legal biographies/autobiographies in book form may be forgotten and hidden in the bookshelves of a law library.  Your articles will always exist on the internet and accessible to all.  Your articles will be “immortal”. Thank you for this, Sir Henry.

Now that Sir Henry himself is no longer with us we must make sure that his blogs really are immortal, and I hope that in the coming months a plan will emerge to ensure that the site remains accessible for many years to come.

 

 

PS I hope nobody will mind me using Sir Henry's picture from his twitter account. It is such a striking and lovely picture.