Social workers should not hide – they are accountable to all of us

The Guardian social care network ran a piece last week entitled Muslim fostering row: Careless press must be held to account in which the author – a social worker expresses shock that “Tower Hamlets council responded and that a court document was made public, disclosing more information about the child”. She goes on to say that “social care professionals are not accountable to the press or public with regards to the care plan for a particular child; they are accountable to service users, other professionals, independent staff and, on occasion, to senior management and regulatory bodies.”

 

She is wrong. Child protection social workers are agents of the state. They act in our name. We give them the power through democratic processes and via Parliament to take children away from their parents – sometimes forever. As such they are accountable to us and it is important that any social worker understands this. If agents of the state feel as if they are unaccountable it will lead to abuses. When a social worker feels they can say “I don’t have to answer to you” we are all in trouble. One of the reasons for the open justice principle is to prevent and to shed a light on abuses of state power, whether it be by a social worker or a police officer, a lawyer or a judge.

 

The fact that in many cases the needs of the child for privacy means there has to be a restriction on what information is made public does not mean that social workers are not accountable.

 

Family cases are heard in private, but privacy should never be a shield for professionals, only for a child. That it is apparently seen as such by a practising social worker invested with highly intrusive powers is profoundly worrying, and one can only hope this is not typical. Both case law and judicial guidance makes clear that social workers ordinarily have no legitimate expectation of anonymity. The sometimes uncomfortable (and sometimes unbalanced) scrutiny of the press is one of the only ways the public can hold social workers in family cases to account, and one of the only ways that they can find out about what is done in their name.

 

Whilst there may be much to criticise about the reporting of the Muslim foster care case (and social workers have not held back in offering it) it is nonetheless important that the press should be entitled to report (albeit often on a restricted basis) – and all the more so where the public cannot come into court and form a view for themselves. As a practising family law barrister, I know from experience that there is, on rare occasions, much to criticise about the work of social workers.

 

Scrutiny is not just about criticism but also about validation of what is done to families by the state. Without some measure of public accountability the legitimacy of what social workers are doing in the name of child protection is called into question. There is a crisis in public confidence in what social workers do, as the #standupforsocialwork campaign acknowledges. Public confidence will only be restored by letting people see what happens in the family courts and in child protection, not by saying “I don’t have to answer to you!”.

National Centre for Domestic Violence

There is a very concerning piece abut the National Centre for Domestic Violence (NCDV) on Buzzfeed :

A Major UK Domestic Violence Organisation Faces Accusations Of Failing Victims And Taking Inappropriate Payments

Now I don’t know much about Buzzfeed, so I can’t say how reliable this is, but if accurate it is really rather worrying. The gist of what Buzzfeed claim is that NCDV has got itself mixed up in a referral fee scandal involving potentially 20 firms of solicitors – one of whom has already been sanctioned, the rest under investigation. It claims that NCDV allows the misleading impression to be created that it is a charity when it is not, and that it inappropriately puffs itself by listing patrons and supporters, in that some were unaware of the use to which their names or quotes were being put, or that they were unaware NCDV has not held charitable status since 2011 (“patrons” is apparently a term that has been deleted since Buzzfeed flagged it).

Nor do I know a great deal about NCDV, other than that from time to time I meet a client who has been referred to them, perhaps by Women’s Aid, and who has been told they can’t help. I had a client not so long ago who no doubt Women’s Aid assumed would be properly supported by their referral in connection with allegations of very worrying but so-far-not-physical harassing behaviour – but she was sent away with the understanding that she could not get an injunction because there had been no violence in the preceding 10 days. Of course this is no part of the legal criteria for an injunction under part IV of the Family Law Act 1996, and insofar as this was the impression she was left with – that the law doesn’t protect people in her situation – it was wrong. It does. She was quite entitled to an injunction and I helped her draft the application so she could go and seek the injunction in person (I was in court on another matter the following day and it couldn’t wait, otherwise I’d have gone myself). It was granted, no thanks to the agency she’d turned to for help. When I asked twitter about this phenomenon others reported having clients who had been told the same, and had potentially been left unprotected when a legal remedy existed. And at least one woman victim confirmed she’d been told the same.

At the time, that prompted me to have a chugg around their site to see what I could find out about NCDV because I was pretty narked at their treatment of my client. But I confess I found their website confusing and couldn’t even get to the bottom of whether or not they were a charity before having to turn my attention to something else – and it passed down my to do list into oblivion, until this Buzzfeed article bumped it up again. It looks as if in the meantime Buzzfeed have been on a similar mission, but have been rather more thorough going than I had time to be.

The NCDV website is a curious beast. It sets out a history of NCDV that is simultaneously detailed and uninformative on the key points (such as legal status and source of funding). It is wordily opaque, On the (undated) history page it says

Clients are not charged for the service. NCDV staff take an initial statement: clients who qualify for legal aid are referred to a local firm; those that don’t get free help from the centre itself. It runs on a shoestring, heavily reliant on volunteers and capping staff salaries at £18,000 a year.

But this is immediately followed by a reference to the CEO Steve Connor being about to qualify as a barrister “in the summer”. Elsewhere the website has Connor completing his BVC in 2007 so it appears that at least some of the information on this page has not been refreshed for many years – so it is very unclear whether the quote above can be relied upon as current. Confusingly, in a post dated December 2016, it is reported that Steve Connor is stepping down as CEO and becoming NCDV Chair “as the organisation restructures to face today’s challenges”. In his place a new CEO was appointed (though the poor old replacement hasn’t made it to the History page and the “our team” page is showing a 404 error today). That post says :

With growing numbers of referrals from the police and other agencies nationally and the ongoing obstacles and threats to access to justice for those needing to protect themselves and their families, NCDV is restructuring to ensure that they can provide the best possible service to all of those seeking help regardless of their ability to pay.

Mark Groves will take over as CEO bringing 8 years of coalface experience in helping and supporting victims. As Head of Operations Mark has managed the organisation on a day to day basis. His vision is to ensure a joined up service across the whole country so that there is a streamlined referral and support service for anyone suffering domestic abuse irrespective of means or postcode. Dr Connor confirmed “ With the diversity of service we now provide it makes sense to put in place a new top management structure. My position will change to one of Non-Executive Chairman guiding NCDV within the core principals we have always had in place.

I don’t know what that means in practice – and according to Buzzfeed and published Companies House data it has been some years since the status of the organisation moved from charitable to private limited company, so this is apparently a further restructuring. Anyway, so far so confusing.

Something that has appeared, I think, since I last looked is a news item about an award won by the NCDV, for its online referral system “referral direct”. Winning an award from the “Social Care Awards 2017” sounds impressive, as does the branded “Referral Direct”, but it is in reality just a basic web form that asks half a dozen questions, and the associated app asks about three (I checked). That said, it appears to be useful and has attracted 400 odd five star reviews from police officers and agencies who have used it, so clearly an important service is being provided efficiently here in many cases. But it is hardly a revolutionary use of technology. For those compulsive googleitis like me, it can easily be established that the award that NCDV has won is from a US based commercial online magazine called Global Health and Pharma, which seems to run about twenty different awards for “all aspects of the healthcare and pharmaceutical sectors“, that organisations can self nominate for. It claims a readership of under 5,000 a month. Personally I’d leave that one off my website, but I guess most visitors don’t go beyond “award winning platform”… The overall impression is that everything and the kitchen sink is stuck on this site but it is never weeded. As Buzzfeed have picked up this seems to include testimonials.

The website also confirms that NCDV do indeed operate to criteria that require an incident in the last 10 days, although the reports from rejected victims don’t entirely match with the slightly more nuanced wording on their site. This criterion seems to me to be plainly funding driven as it is likely to be a crude means of catching and progressing only those applications which have a pretty good chance of passing the merits test for the purposes of emergency funding, and of excluding those that are likely to represent work for no money – at any rate I can’t think of any other good reason for it. The FAQs explain it like this :

…time is an issue at law. To make an emergency application there will usually need to be a recent use or threat of violence within, at the most, the last seven days (this may be different if, for example, someone has been in hospital for several weeks prior to making an application or there have been bail conditions for the last month).

This means that an application for an emergency injunction, which is asking the Judge to exercise their ‘emergency powers’, must be made as soon as possible. The law does not say ‘as soon as conveniently possible’ because this is inconsistent with an emergency. Of course, the benefits of obtaining an injunction sooner or later are self-explanatory – you have a stronger case and legal protection much quicker than otherwise.

I think the suggestion that time is an issue “at law” is misleading. There is a general discretion and yes, recency will be relevant to the assessment of risk and therefore the justification for an order. But there is no specific statutory criteria, test or limitation referable to time. And the law doesn’t say you are barred from applying. At its highest a delay reduces your chances of success. I think it is wrong that NCDV don’t acknowledge this is simply their own proxy for a merits test because it is at least sometimes interpreted either by their volunteer advisers or the end victim (or both) as being a bar.

Confusingly, having referred to 7 days in the above FAQ, they then go on immediately to answer a question about what one should do if it has been more than ten days since the most recent incident :

This is sometimes not a problem and there may be other reasons that would still warrant an emergency injunction application.

The most common reasons are when someone has been in hospital, or the abuser is has been serving a prison sentence or released with bail conditions following an arrest. When there has been a significant period of time since the last incident, there are two options.

First, NCDV could draft a warning letter for you, requesting the abuser to stop their unacceptable behaviour immediately.

Secondly, NCDV could help you make an ‘on notice’ application for an injunction. This is exactly the same as an emergency injunction except for the procedure used. Whereas you are able to obtain an emergency injunction on the same day you first go to court, without the abuser knowing anything at all, an on notice application means being given a future court date when the injunction application will be heard with both yourself and the abuser present. The injunction would have the same powers attached to it and the police could arrest immediately on breach.

The issue here is that whilst NCDV correctly identify that it may be more difficult to secure a without notice injunction if there hasn’t been a recent incident, the circumstances in which an injunction may still be justified are broader than suggested (not least that it may take some days to make the decision or to safely manage to contact an agency, or a victim may have successfully hidden for a period). And more importantly, anecdotal reports of what happens on the ground don’t match this FAQ answer – victims aren’t being given a warning letter or helped to make an on notice application. They are being told that NCDV can’t help. So much for them helping all comers. That may not happen in all or even many cases falling foul of the 7 / 10 day rule, but a handful is too many for me.

As I understand the situation in light of the Buzzfeed article (and the fact that they use mainly mckenzie friend law students to do their work and are not a regulated provider of legal services), NCDV don’t actually hold legal aid certificates themselves but are paid for the preparation of witness statements under the legal aid certificates of the solicitors to whom they refer clients. I guess that it is unattractive to them to “waste time” undertaking work for a client who may ultimately not secure legal aid and where that work may ultimately not be remunerated. Don’t forget too, that whilst training, insuring and managing volunteers is not cost neutral, these are volunteers whose services are being charged out for – so each client who is helped for free but who can’t secure legal aid represents a potential lost profit to the business. There is nothing wrong with operating a business for profit of course – I do, and solicitors firms do so too. But there of course clients know this. The issue with NCDVs arrangement with at least one solicitors firm is that nobody told the client NCDV were making 170 quid out of them.

The NCDV website says clearly that a witness statement is drafted before the solicitor referral is made (and therefore before legal aid is granted), which raises a question at least as to whether or not the use of legal aid to reimburse for work carried out prior to the grant of a certificate is a proper use of those funds (I don’t know the answer from a professional conduct point of view as I’m no expert on the Solicitors’ Code of Conduct, I merely raise it). But it certainly makes it look more like referral fee than a genuine fee for the work done and this seems to be one of the areas where NCDV fell down in the case where a solicitors firm was sanctioned. Buzzfeed say other investigations are ongoing and although we don’t know if they raise similar issues, it does seem likely, given the information on the NCDV site : In the example that is on the SRA website the record shows that the work was carried out BEFORE referral, and that the clients were not told that NCDV would receive a fee (It’s not clear from the published information whether or not the fee came out of legal aid funds or the firms own funds). This matches the NCDV generic description of how they operate :

 

 

 

and there is certainly no reference I can find on the website to NCDV receiving a fee for referrals OR for the drafting of the witness statement – indeed they talk about providing their services for free. Whilst they seem to be free to the end user, it appears they are not in fact “for free”. If the NCDV website explanation of its process above can be relied upon as properly summarising its current or recent practice (who knows!), then the Duncan Lewis example is possibly indicative of a wider pattern – the description of what Duncan Lewis were sanctioned for slots neatly in with the publicly described business model they have historically operated on, and buzzfeed certainly suggest that they have seen documents which show that a similar arrangement with Duncan Lewis solicitors was made with others.

If it is (or has been) more widespread there seems to be a mismatch between the best interests of the client and the stated aims of NCDV to provide protection to all, and the way that NCDV appear to be working – something about their business model seems to have distorted their practice and diverted them away from their early, laudable aims. The irony is that because they are not regulated it will be only the solicitors firms who are sanctioned, whilst NCDV will merely suffer reputational damage.

Personally I’m less interested in the technicalities of referral fees than in whether or not funding structures are responsible for NCDV being relied on as a service that provides a

free, fast emergency injunction service to survivors of domestic violence regardless of their financial circumstances, race, gender or sexual orientation [and] allows anyone to apply for an injunction within 24 hours of first contact (in most circumstances). 

when they don’t.

That quote is from the front page of their website. To be fair, they do say “in most circumstances“, but my reading is that this caveat applies to the speed not the merits. They may be in the minority but certainly some victims are being turned away from this service and left in the cold. As far as I can tell victims are NOT referred on to other providers who don’t operate an arbitrary 10 day rule and who can assist these men and women to access the protection that the law affords them. And I am not confident that the national organisations who are dependent on NCDV to refer their clients to are fully cognisant of this potential gap in protection.

It would be a REALLY good idea if NCDV and their new management team did a proper clear out of their website to remove out of date and potentially confusing / contradictory information, and transparently explain how they work. In addition they would be wise to issue a press statement responding to Buzzfeed’s claims rather than burying their heads in the sand, because many of us will want to know if Buzzfeed’s claims have any merit. It may be that the anecdotal examples I’ve given (And that are in the Buzzfeed piece) are rarities, or borne of training or process issues within NCVO that can be relatively easily sorted – or they may be more widespread and deep rooted, or even culturally entrenched. I don’t know, but I’d like to. I hope it is the former.

I base the opinions I’ve set out here largely on information from NCDV’s own website, but if I’ve misunderstood anything about how NCDV works I will be happy to (transparently) correct it, and if NCDV wish to respond I would be happy to host a response. I do not wish to be unfair to them but can only rely on publicly available information, my own anecdotal experience and common sense. And I think that it is in the public interest for the concerns raised to be fully aired and the quite proper questions raised to be answered.

Foreword to The Third Edition of FCwaL

FCWAL 3 Cover

The Times has today published some selected extracts from the foreword to the third edition of my book The Family Court without a Lawyer – A Handbook for Litigants in Person.

I’ve been asked for the full foreword, so here it is… I especially like the wistful hope at the end that I might not be such a god awful windbag in future editions. You know, I would have written a shorter book, Sir James, but I did not have the time…

 

The Family Court without a Lawyer – A Handbook for Litigants in Person, by Lucy Reed
Foreword by Sir James Munby, President of the Family Division

I am delighted to be able to welcome and applaud the latest edition of this important, and for litigants in person in the Family Court, absolutely invaluable book. Written by an author who has vast practical experience of what really goes on in family courts, this Handbook will continue to serve as a trusty, reliable and up-to-date guide and companion to those who find themselves on their own in court and without the assistance of a lawyer.

This latest edition could not be more timely, as the long-term impacts of LASPO on the administration of justice in the family courts become daily more and more apparent. As Mr Justice Cobb said in his Foreword to the last edition, and I could not agree more:

“Now, more than ever, does the obligation fall on those of us working in the family courts to assist litigants in person to achieve the best outcome; this is plainly in their interests, but it is in the interests of justice as a whole. Initiatives across Government and the voluntary sector have gone some way to aid those facing courts on their own; this book makes a huge contribution to those endeavours.”

The Family Justice Council has done valuable work in providing user-friendly literature for litigants in person, but otherwise the work thus far undertaken by Government – whether the Ministry of Justice, Her Majesty’s Courts and Tribunals Service or the Family Procedure Rule Committee – has been sadly inadequate. So it is to the voluntary sector and to practitioners such as Lucy Reed that we must continue to look.

The truth is that we face a massive challenge. At present our practices and procedures are designed for – assume – a family justice system where the typical litigant has legal representation, whereas the reality is that, across vast swathes of the family justice system, the typical litigant now has no legal representation. The consequence is that practices, procedures and rules designed for lawyers are largely inaccessible – truth be told, unintelligible – to litigants in person. The Family Procedure Rules are a monument to a certain traditional style of legal drafting but are no more useful or intelligible to the litigant than the Tax statutes are to the taxpayer. And most court forms are little better.

The fact that this handbook is as long as it necessarily has to be if it is to achieve our author’s objectives is no criticism of her but rather an indictment of the unnecessarily over-complicated ‘system’ which her readers are condemned to navigate.
In time these serious blots on our system will be remedied, but in the meantime the need for books such as this will only increase. And given the traditional snail’s pace of legal reform in this country I foresee the need for many further editions from our author before we reach the promised land. In an ideal world we would not need a book like this but that world exists only at the end of the rainbow. So we will always need books like this. My hope is that, in due course, as our processes are simplified, our author will be able to produce a correspondingly shorter text. In the meantime I can only hope that she continues her good work. I look forward to the next, and to many further, editions.

James Munby
8 August 2017