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!”.

Tip for anyone thinking of applying for a reporting restriction order…

Bill Barber on Flickr

Well, I’ve done my good deed for the day. This is about my only practically useful achievement this week as I have been mired in procrastination and diversionary tactics.

In the course of doing some research for some writing about reporting restriction orders recently, I realised that the version of the 2005 Cafcass / OffSol Practice Note on Reporting Restriction Orders that appears in the Family Court Practice (Red Book) is different from the version appearing elsewhere – including in major textbooks, via Lexis at the original 2005 FLR citation, and most importantly on the CopyDirect website (which is where I suspect most will go to find it). The Red Book version is marked as “updated March 2015“. However, it appears that CAFCASS neglected to circulate it other than to the editors of the Red Book and, until I directly asked them today, hadn’t published it on their site – so it was only available to those with the right subscription. I would guess that many media lawyers would access the note via CopyDirect or Lexis and not from the Red Book (which is more of a family lawyer’s friend), so they will probably have been happily oblivious that there have been any changes. The changes are not radical, and are largely in the form of updating, but neither are they negligible.

This is how our conversation began…

Not a terribly promising start. However, one thing CAFCASS are really good at is responding by email once you’ve raised a query on twitter. Their comms team are on the ball. And so, I’m happy to say the 2015 version is now on the CAFCASS website here, listed on their policies page and CAFCASS say :

Re the practice note, this was something Cafcass and the Official Solicitor agreed to provide as a resource a number of years ago (2004) to practitioners who were making applications for RROs. Since then the document has been updated (2015) and the contact details of Cafcass and the Official Solicitor were removed to avoid giving the impression that legal advice would be provided by those organisations.  That said, it remains a published document containing what we hope is useful guidance and should be available somewhere other than the online red book.

Belated recognition of the need to make publicly available one’s own guidance if you expect it to be followed, but welcome nonetheless.

I included links above to both the pdf and the policies page because it is possible that the first link will be altered at some point, as CAFCASS seem to have uploaded a PDF of the relevant bit of the Red Book, which incorporates their editorial commentary notes, and I think is probably therefore not CAFCASS copyright. I’ve let CAFCASS know about this possible issue, along with the fact that publishing the document in this way makes it look as if the commentary notes are part of the substantive guidance.

I expect that the Copydirect site will be updated in due course, but its the summer hols – so in the short term anyone applying for a RRO should look to the Red Book or the CAFCASS website.

You may send tokens of your gratitude to my flunkies whilst I am away*…

*what IS a flunky?

 

Feature pic : Bill Barber on Flickr (creative commons licence – thanks!)

Judicial Cooperation with Serious Case Reviews

….There won’t be any (cooperation). Not least because Serious Case Reviews have been abolished with the enactment of the Children and Social Work Act 2017 on 27 April, which will (from a date yet to be fixed) abolish Local Safeguarding Childrens’ Boards and thus, Serious Case Reviews. The President’s Guidance : Judicial Cooperation with Serious Case Reviews is dated 2 May 2017. It IS current, but it won’t be for long (assuming always that the Act is actually brought into force – though there is no particular reason to think it won’t be once the General Election is over).

OK, it’s a cheap point. LSCBs (Local Safeguarding Children Boards) and SCRs will be replaced with the Child Safeguarding Practice Review Panel and with Local child safeguarding practice reviews and Child Death Review Panels. I’ve yet to get my head around the detail of what the difference is (apart from the name), but the gist seems to be that the CSPRP is a National Panel which will look at “serious child safeguarding cases in England which raise issues that are complex or of national importance”, and the LCSPRs seem pretty much equivalent to LSCBs insofar as they are a multi agency group tasked with working together to review “serious child safeguarding cases which raise issues of importance in relation to the area”, with the CDRPs looking specifically at cases of child death (SCRs were tasked collectively with cases of serious harm or death).

Nonetheless, it seems fair to assume that the guidance, which will shortly relate to a defunct process, will apply equally to the new set up. I make that assumption because the points within the guidance are all points of basic, established principle and contain no surprises : in a nutshell : judicial independence innit. You can have all the judgments, all the documents the judge had and all the transcripts for your SCR – but judges will not be answering questions, undertaking interviews and senior judges will most certainly NOT be carrying out IMRs (Independent Management Reviews) on the work of their junior colleagues. That’s what appeals are for.

This is pretty much what I said was the position when a group of us were discussing criticism of Hogg J for refusing to engage in the SCR arising from the death of Ellie Butler (See here). This document comes as no surprise, and is likely to have been prompted by the author of that SCR writing to The President specifically to raise this issue with him (as it was said at the time she had done).

One thing I do think odd though, is the implication that it would be effectively unthinkable for one judge to comment on the decisions of another :

  1. It is a fundamental principle that judges do not comment on the decisions of other judges outside the appellate process. This is why it would be inappropriate for an IMR of a judicial decision to be conducted; it would, effectively, be one judge (or group of judges) commenting upon the decisions of another judge outside the proper appellate process…This principle evolved in order to protect the rule of law – it reinforces the idea that the only way to challenge a judicial decision is to do so in court, not to seek to undermine it outside the court process.
  2. This position on SCRs has been followed by Sir Mark’s successors, Sir Nicholas Wall P and, in turn, by me.

This seems entirely sensible until one remembers that there has been at least one occasion where precisely this has happened : the Report to the President of the Family Division on the publication ‘Twenty-nine child homicides’ was prepared by Sir Nicholas Wall, then a High Court Judge, and he said this :

…Having discussed the matter with officials from the Department of Constitutional Affairs (DCA), Dame Elizabeth [Elizabeth Butler-Sloss, then the President of the Family Division] and I agreed, that in view both of the importance of the subject and the Select Committee’s proper concern about it, I should examine all the available court files in all the cases identified by WAFE in which there had been court involvement. I would then report – either to her or, as was more likely, to her successor…[he conducted a file review of various cases]

…a number of queries inevitably arose, and I wrote to the judges involved in the five cases, asking questions and inviting their comments…I have received complete co-operation from all the judges involved, who have been, without exception, both frank and helpful…My assessment of their conduct appears at the conclusion of the Part of the report dealing with the individual cases…I sent a copy of the draft to each of the judges involved for comment prior to finalisation. I have received responses from all five. None made any criticisms of the report or of my comments on the individual cases, and in general each was supportive of my recommendations to you.

As far as I know this is the only time that such a report has been prepared (it is worth noting that the report was prepared in response to the Womens’ Aid 29 Homicides report, and that more recently in response to the more recent Womens’ Aid 19 Child Homicides report and subsequent campaigning by Womens’ Aid the President tasked Cobb J with a review PD12J). It is possible that there are other examples that I am unaware of.
I confess that I am struggling with the difference in principle between the Homicides report, which is to all intents and purposes an IMR, and the assertion that the judiciary don’t scrutinise or critique one another’s work except in the course of an appellate system. Granted, the Wall report was exceptional, but cases like Ellie Butler’s are also pretty exceptional – so it begs the question why an exception couldn’t be / shouldn’t have been made there. In posing this question I’m not suggesting the answer, I’m simply highlighting the apparent inconsistency in approach and trying to work it through in my own mind.
For me, it would have been more helpful for the Guidance to have acknowledged this isolated example, and to have explained the distinction for us dummies. But I guess (ironically) that might have had to involve the criticism of the position adopted by another judge, so perhaps answer I’m seeking is to be found in the silence itself.
It is something I will give more thought to – does anyone else have an answer?