Empathy, anxiety and resilience: Lady Hale in the Supreme Court yesterday

“We do not have many women judges in the higher, law-shaping courts. We have even fewer judges, men or women, who are prepared to call themselves feminists…

…it makes such a difference how the story is told. Feminist judges will take different facts from the mass of detail to tell the story in a different way, to bring out the features which others discard, and to explain the features which others will find difficult to understand. …Feminist judges will set the story in a different context, a context which they understand but others may not.

Reading this book… is certainly a chastening experience for any judge who, like me, believes herself to be a feminist.”

(Lady Hale, Baroness Hale of Richmond, in the Foreword to ‘Feminist Judgments’, the book coming out of the Feminist Judgments Project)

I am not going to presume to analyse Lady Hale’s self-ascription as a feminist. But I am going to open my observations on B (a Child), Re [2013] UKSC 30 (12 June 2013)  by observing that the only woman ever to sit as a judge of the Supreme Court yesterday sat in a lonely minority of one as she gave judgment for the parents while the four male judges gave judgment for the local authority.

And to draw on her analysis above about how she might take a different approach, in a case involving the removal of a girl from her mother at birth.

‘…bringing out the features which others discard…’

Lady Hale’s is the only mention of empathy. Talking of the lack of co-operation of the parents with the local authority, she says,

“Perhaps this is not to be wondered at. Their original contact… was to seek an interim care order separating mother and baby without taking the usual step of a pre-proceedings letter explaining matters to them. Anyone who has had to leave a premature baby in a special baby care unit can empathise with the feelings of a mother who is prevented from taking her baby home when, miracle of miracles, that baby is well enough to be discharged from hospital. Of course, the first social work statement to the court explained why the authority was making the application. But the scene was set for a rocky relationship.”

Touché. The point about co-operation was fundamental to this case, because there was broad agreement that the child could only be removed if it was necessary, and that meant that alternatives would not work; and the reason that alternatives would not work was held to be that lack of cooperation.

Now, this point about co-operative social work is something of a hobby horse of mine. It seems to me fundamental to social work as a profession, and to the guidance under which we operate, that we try co-operation first, and compulsion as a remedy of last resort. I ask, “why don’t you try to seek consent”, and am told, “because we might not get it, and we’d have to act anyway”; and I ask, “but aren’t you more likely to get co-operation, and likely to get more co-operation, if you ask for it than if you don’t?” There are plenty of examples of the harm to a supportive relationship that can result from the premature use of compulsion.

And yet even though it is a hobby horse of mine, the fact that the “parents had been able to co-operate with a succession of workers who were supervising their contact with Amelia over the whole of her life” but had a particular problem with the local authority that had made pre-emptive use of compulsion had passed me by until Lady Hale drew out the detail.

“…a different context, a context which they understand but others may not…”

The risk of “over-medicalisation” was held to arise in this case. Here Lady Hale uses the first person plural “we, us” to identify herself as a mother:

“A child whose mother exaggerates and sees the worst and thereby exposes her to unnecessary medical investigations and even treatment may well suffer significant harm. But it will be a question of degree, depending upon its frequency and severity. Many of us are anxious mothers and take our children to the doctor far more often than we should. Some of us, of course, are not anxious enough and do not take our children to the doctor when we should. There was evidence that the mother was over-anxious during the early days when Amelia was in foster care and that she over-dramatised an occasion when Amelia was taken to hospital with breathing difficulties. On the other hand, there was no evidence at all that her older daughter had been subject to excessive medicalisation…”

More detail then: the mother was ‘over-anxious’ about the child who had been removed at birth, but not the child who had not.

“…to explain the features which others will find difficult to understand…”

Lady Hale twice mentions the notion of resilience:

“Every child is an individual, with her own character and personality. Many children are remarkably resilient. They do not all inherit their parents’ less attractive characters or copy their less attractive behaviours. Indeed some will consciously reject them. They have many other positive influences in their lives which can help them to resist the negative, whether it is their schools, their friends, or other people around them. How confident do we have to be that a child will indeed suffer harm because of her parents’ character and behaviour before we separate them for good?”

In a recent speech to the Socio-Legal Studies Association, Lady Hale explored the question whether judges should be socio-legal scholars, and along the way the place of academic research in judgments. Although she makes no mention of it, her reference to ‘resilience’ calls to mind an important and relevant piece of research published this year in the British Journal of Social Work. The authors, in words prescient of Lady Hale’s approach to unknown future harm, are specifically concerned that the policy trend towards early intervention is not underpinned by the scientific research:

“The focus on early intervention begun under New Labour has been sharpened under the Coalition. This is a future-oriented project building on elements of social investment and moral underclass discourses. It incorporates an unforgiving approach to time and to parents—improve quickly or within the set time limits. It is shored up by a particularly potent neuroscientific argument which has been widely critiqued from within neuroscience itself (Bruer, 1999; Uttal, 2011) but is unchallenged in current policy. Read carefully, the original neuroscience literature shows that the infant brain has quite remarkable resilience and plasticity when exposed to ordinary patterns of ‘chaotic’ neglect usually seen in the population referred to children’s social care (Wastell and White, 2012). In truth, if changes to the brain were the criterion for removal from parents, very few children would be removed. Yet, the rhetorical potency of the ‘now or never’ (Munro, 2011b, p. 69) argument is so great that it is supporting a drive towards early removal and has become a powerful and unquestioned professional mantra.”

(Featherstone, B. et al, ‘A Marriage Made in Hell: Early Intervention Meets Child Protection’ British Journal of Social Work (2013) advance access publication)

‘…to tell the story in a different way…’

So is this a judgment in which Lady Hale let her heart rule her head? Absolutely not. Hers is the longest judgment by some way, and rises admirably to the challenge that she alone faced, of having to explain why she would interfere with and overturn the decisions below. The other judgments have only to explain why they would not, and as one commentator (@suesspiciousmin) has already observed,

“For my part, I am unsure why the other Judges did not share [Lady Hale’s] views…”

It is something of a problem when it is difficult to tell from four majority judgments what the key points actually are. But working out the lessons from this case is indeed for me going to have to be an exercise in revision of legal principles with obscure Latin names: stare decisis, obiter dicta, rationes decidendi, per incuriam. Because the truth of the matter is that it rather looks as though Lady Hale’s judgment fits more naturally at the beginning, and her legal analysis is largely adopted. One might almost imagine them all considering her first draft and saying, “well, we agree with you about the law, but we can’t endorse the conclusion it leads you to in this case, you’ll have to go last, and what can we say first?”

On my quick review of the majority judgments, I counted 17 specific endorsements of the minority analysis (including paragraph 73 “As Lady Hale (who knows more about this than anybody) says…”), and two specific disagreements (on the approach to proportionality by an appellate court, and the feasibility of remission). There were also statements difficult to categorise as one or the other: “[my analysis] appears to differ… However” (para 95); “real sympathy with” (para 99); “in deference to Lady Hale’s conclusions, I see how it could be argued…” (para 101). The earlier judgments adopted the factual matrix from Lady Hale (e.g. para 51); the legislation (para 50); and her approach to naming (para 2, 3, 132). One of the judges specifically endorses both the majority and the minority approach to significant harm (para 56). He also goes out of his way to specifically endorse Lady Hale’s guidance to practitioners (para 56).

The truth of the matter is that it is the minority judgment that is truly useful. I commend it not only for its emotional intelligence (and because I agree with almost all of it!), but because of its lucidity, clarity of reasoning and its attempt to give real guidance to practitioners. Which leaves wide open the question, “but is it the law if she’s in a minority”.  A question which is difficult to answer but cannot be a resounding ‘no’ and may well be a qualified ‘yes’, given the nature and extent of endorsement from the majority.

Back to the Latin!

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

When is guidance ‘statutory’ and does it matter?

In the beginning was section 7, Local Authority Social Services Act 1970:

Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.

The Act which set up social services authorities over 40 years ago also set up a peculiar type of legal authority for social workers. On the one hand, it was guidance rather than law. On the other hand, we had to follow it. It is not surprising that a challenge was going to come: how can something be binding if it is guidance? The answer has also stood the test of time. In R v Islington LBC ex p Rixon [1998] 1 CCLR 119 it was held:

Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.

And there we have it: a peculiar kind of law emanating from the executive rather than the legislature. It is still guidance because, exceptionally and with good reason, we might deviate slightly from it; but it carries its own legal authority because, almost all the time, we must follow it.

Over recent years, other Acts of Parliament have created similar powers for executive-driven binding guidance; the guidance has been held to be binding on a wider range of people; and a plethora of both major and minor documents have been stated to have the status of what is now generally termed ‘statutory guidance’.

I think it is time to revisit the term ‘statutory guidance’. The label confirming the status ‘statutory guidance’ helped us for a while. I am not sure it does any more. I think we should be asking the question, is it ‘binding’ guidance instead. Here is why.

What is the status of non-statutory guidance?

All sorts of people throw guidance at professionals that does not bear the label ‘statutory’. It is of varying quality and usefulness. Some of it is driven by a political agenda, whether of politicians or campaigning groups. Much guidance emanates from employers – policy, practice and procedural documents.

As we weigh up the merit of what is being thrown at us, and decide whether to consign it to the bin, or to pin it to the notice board with fairy lights around it, we will make some important discoveries about non-statutory guidance. Some of it is darned good:

• There are documents which merit our attention because they make the law more accessible;
• There are documents that merit our attention because of the special expertise of the authors;
• There are documents that merit our attention because they disseminate quality research that ought properly to inform our practice;
• There are documents that merit our attention because they tell us what executive-driven guidance fails to tell us…

Such documents may not have the label ‘statutory’, but if they guide our path, improve our practice and keep us from legal error, they may have an important role nonetheless.

Six months ago, the High Court in Ali v London Borough of Newham [2012] EWHC 2970 (Admin) (30 October 2012) ruled on the status of a piece of non-statutory guidance.

The Department for Transport has produced guidance on the use of tactile paving to assist the visually impaired. The national guidance was developed in conjunction with and with the endorsement of Guide Dogs for the Blind and the RNIB.

So the guidance emanated from the executive, with the input of non-government expertise. The court ruled it had to be followed:

As to the principal contest between the parties, namely, the status and effect of non-statutory guidance, I recognise some force in [counsel’s contrary] submission that the court should be circumspect and careful so as to avoid converting what is a non-binding guidance into, in effect, mandatory rules. To do so would tend to subvert the intention of the guidance and would risk undermining the autonomy of the primary decision maker upon whom Parliament has conferred ultimate responsibility for discharging the function in question. However, this does seem to me to be yet another area which bears out Lord Steyn’s famous dictum that “in law, context is everything”. In my view, the weight that should be given to particular guidance depends upon the specific context in which the guidance has been produced. In particular (without intending to create an exhaustive list) I believe that it is necessary to give due regard to the authorship of the guidance, the quality and intensity of the work done in the production of the guidance, the extent to which the (possibly competing) interests of those who are likely to be affected by the guidance have been recognised and weighed, the importance of any more general public policy that the guidance has sought to promote, and the express terms of the guidance itself. In my view, it would be unwise for the court to descend into the intrinsic merits of the guidance, unless it was seriously contended that it was unlawful or very obviously defective. [my emphasis]

The caselaw has arrived at a significant point in relation to non-statutory guidance: we may be bound by guidance because it is authoritative and expert, rather than because of its label.

Can statutory guidance change our legal obligations?

There are a number of threads to pick up, to work out the effect that statutory guidance has on our legal obligations as social workers.

First, let’s not beat about the bush: by section 7 and similar sections, Parliament intended to delegate authority to the executive to create guidance that social workers should follow, irrespective of the wisdom of that guidance.

There are plenty of examples of guidance which have enlarged the law. That is to say, by embellishing the bare bones of the legislation, they have created additional obligations upon us. The various Codes of Practice we must follow (Mental Health Act, Mental Capacity Act, Deprivation of Liberty Safeguards) are examples.

It is one thing to suggest that guidance can enlarge the law, quite another to suggest that it can change it. Delegated guidance has to be consistent with the higher legal authorities from which it derives its own authority. That this includes human rights ought perhaps to be uncontroversial, but in fact two recent legal tussles have illuminated the interface of delegated guidance and human rights.

First is the Home Secretary’s frustration with the approach taken by the courts to deporting foreign nationals in the light of Article 8. In one bout of this ongoing struggle, the Home Secretary amended the Immigration Rules, purporting to tell judges how to apply human rights. These Rules have in common with statutory guidance that they emanate from the executive, and are not legislation. They go further than statutory guidance in that they are “presented to Parliament” under the primary statute, rather than simply deriving their authority from it.

As explained by Dr Mark Elliott in ‘A human rights reality check for the Home Secretary’, the Home Secretary’s attempt to tell judges how to think was doomed:

Quite properly, the Upper Tribunal has held that while the new Rules can “operate to enhance judicial understanding of the ‘public interest’ side of the [proportionality] scales”, they cannot relieve courts or tribunals of their obligation under the Human Rights Act 1998 to apply Article 8 itself.

Second is the decision last month in strategic litigation on the Police ‘Code C’, which treats 17-year-olds in detention as adults. The Codes are issued by the Secretary of State under part VI of the Police and Criminal Evidence Act 1984.The court ruled

that the Secretary of State acted in a way which was incompatible with Article 8 of the Convention in failing to revise Code C so as to distinguish between the treatment of an adult detainee and a detainee under the age of 18. Article 8, read with UNCRC, requires a 17 year-old in detention to be treated in conformity with the principle that his best interests were a primary consideration.

Statutory guidance, then, can usefully enlarge on the detail of our legal obligations, but cannot diminish our obligation to give precedence to human rights.

Appendix C to ‘Working Together 2013’

We have arrived at a point where authoritative expert guidance from the Executive that will help us to apply the law correctly might not need the prop of a ‘statutory’ label to make it binding; whereas even the label ‘statutory’ gives us no certainty that guidance is actually compliant with the law so that it should be followed.

That is the context in which, in an earlier blog, I boldly suggested practitioners might keep ‘Working Together 2010’ by their elbows. It had been modified over time to take account of developing learning; it set our lessons from research; it had whole chapters devoted to particular areas of practice difficulty; it incorporated lessons from the Laming reports; it attempted to set out how to comply with human rights principles; and it incorporated by reference a number of other specialist guidance documents. It was by no means perfect, but it was unquestionably useful. It served the purpose such guidance should serve, of drawing together in one place what we need to know to get it right.

One of the criticisms proffered of its successor guidance concerns Appendix C. Here, over 3 pages, is a list of “Supplementary Guidance”. But it is just that – a list. It doesn’t set the context of the documents, as Chapter 6 of ‘Working Together 2010’ did. Strictly speaking, it doesn’t even tell you whether you should follow the supplementary guidance. It’s more like a reading list.

This has led some to suggest or to fear that ‘Working Together 2013’ has downgraded the status of some of the specialist guidance that used to be incorporated, or incorporated by reference, in the older version. ECPAT, for example, has criticised the omission of the detailed guidance on trafficked children. That is only the tip of the iceberg of specialist materials that have been omitted in service of the goal of a shorter, pithier ‘Working Together’.

But I venture to suggest all is not lost. In this brave new world where we must look beyond the label, and check for ourselves whether guidance does what it says on the tin, the absence of authoritative detail may diminish ‘Working Together 2013’. But the documents mentioned in its Appendix C may be enhanced rather than diminished by standing alone.

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

See also:

Human rights have disappeared from ‘Working Together’

Losing control of the rudder?

‘Working Together 2013 ignores human rights and we must act on this’

Quashing the child protection investigation: self-serving or breaching the dam?

Yesterday I posted on our case of AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin) (13 March 2013). I said,

“I want to focus for now, in two posts, on two criticisms that have inevitably been made about our challenge to Haringey. In doing so, I can highlight two points of wider relevance that the case has achieved, that are comparatively unusual.”

This is the second of the two posts. Perhaps unsurprisingly, the second criticism that I wanted to focus on has already been presaged in the comments on the first post. The first post focussed on criticisms that would be likely to come from those on the child-rescue side of the child-rescue versus family-preservation debate (if you’re not familiar with the debate, or with it being framed in these terms, there’s a very thoughtful post by @suesspiciousmin here: Family Preservation versus Child Rescue). This second post focuses on criticisms that have been expressed from the other side, and it’s this:

“They only won because they were social workers themselves. Ordinary parents wouldn’t have won.”

[Once again, if you don’t know the case I am talking about, you can read commentary from:

The Guardian: Couple falsely accused of child abuse win damages from Haringey council

The BBC: Haringey’s social services child inquiry ruled unlawful

The Telegraph: Baby P council under fire for launching ‘unlawful’ abuse inquiry

The Mail: Parents’ social service hell after one anonymous letter]

The facts

So, briefly, an anonymous allegation is made to Haringey Social Services about parents who, it later transpires, are child protection professionals. Haringey seek information from the GP, asserting that they are undertaking a child protection investigation, and also from the school. Nothing damaging comes back, the GP says explicitly that he knows them well and has no concerns. They are contacted by mobile, and immediately challenge the lawfulness of what has gone on before; their challenge sets in motion a course of events which results in Haringey saying they are escalating to a full-blown child protection enquiry, which in due course is closed down, suspected of having been malicious, when no concerns are found.

OK, now let’s address the “they only won because they were social workers themselves” argument.

Briefly – to keep the HCPC off our backs on protection of title – I should point out that only one of them is a registered social worker with protected title (read the judgment here), and press reports suggesting otherwise are inaccurate. In fairness, however, both are child protection professionals, so the criticism could legitimately be rewritten, “they only won because they were child protection professionals themselves”.

Knowledge of child protection procedures

There are different points to make about their knowledge as child protection professionals, and their status as such.

It is unquestionably true that their knowledge was relevant. As the judgment records, at first contact, they realised that what had gone on before first contact must have been unlawful (paragraph 36). And it took a detailed inside knowledge of child protection procedures to realise this.

You might say that knowledge didn’t help. Fuelled by their knowledge, they challenged as they did; their challenge prompted the escalation. But I think it is probably fair to say that knowledge did help. Because when a social worker says, “tut, tut, you really shouldn’t challenge social workers like that”, the fact that your challenges turn out to be legally accurate, and your sense of grievance legally justified is likely to be going to help your cause.

Which, I fear, is a real hurdle for people who face equally wrong procedures, and whose sense of grievance is equally justified, but who lack the knowledge to express it accurately.

That is not fair. It’s also difficult for parents to address. It’s all very well saying that parents can arm themselves with knowledge about what should happen if contacted by a social worker, but many parents, like these parents, are caught on the hop with no forewarning that there had been concerns expressed, ever. Moreover, we had a couple of day’s legal argument in the High Court about what should have happened – are we really suggesting that what should have happened should be part of some sort of citizenship training for everyone? I think not!

Of course, if you do have warning, you could take time to acquire some knowledge and take some advice. Again @suesspiciousmin has posted some advice (with appropriate caveats and disclaimers):

•        What should you do if social services steal your children?
•        “Social Services are asking me to put my child in care, and they want me to do it now”

You can say, if you wish, that @suesspiciousmin is a local authority care lawyer, and I (heaven forbid!) am not only a lawyer – albeit an independent one – but a registered social worker also, so neither of us can be trusted. But my advice is this: if you want knowledge that is going to help you win a challenge as AB and CD did, don’t go to the conspiracy theory websites. Don’t try to have your cake and eat it: AB and CD chose to stay inside the system, and to use the system’s rules. If you don’t want to do that, don’t be surprised if you don’t then get a sympathetic hearing.

Rant over. But the point on knowledge is made. It is a real hurdle, it gave an inbuilt advantage to AB and CD. But in fairness, why should it be up to parents to have knowledge anyway? Which brings me on to…

Duties of social workers

As I regularly argue, it is a social worker’s duty not only to get the law right, but also to be absolutely clear – and especially when using compulsion – that service users should be allowed to challenge and test whether they are doing so. The HCPC Standards of Proficiency for Social Workers in England include that social workers must:

“9.2    be able to work with service users and carers to enable them to assess and make informed decisions about their needs, circumstances, risks, preferred options and resources

9.3     be able to work with service users and carers to promote individual growth, development and independence and to assist them to understand and exercise their rights

9.4     be able to support service users’ and carers’ rights to control their lives and make informed choices about the services they receive” [my emphasis]

These are enforceable standards through regulation. Social workers acting professionally should be clear with service users that they are open to having the legitimacy of their actions challenged, and indeed how to do so. The BASW Code of Ethics is clearer than the HCPC Standards that assisting service users to understand and exercise rights includes rights vis-à-vis social workers themselves:

“Social workers should give people the information they need to make informed choices and decisions. They should enable people to access all information recorded about themselves, subject to any limitations imposed by law. Social workers should assist people to understand and exercise their rights including making complaints and other remedies.” [my emphasis]

This did not happen in this case, indeed it rather looks as though the opposite happened, that an attempt to assert rights received a hostile reception from Haringey (that, at least, is my reading of sub-paragraph (8) of paragraph 71 of the judgment).

So in point of fact, the law does not expect parents to have knowledge, it expects social workers to convey knowledge to parents, with regulatory consequences if they fail to do so.

Status

An alternative view of “they only won because they were child protection professionals themselves” is that it was their status that mattered – that they got special treatment because they were not “ordinary parents”.

Come on, credit where it’s due! There were social workers on both sides of this argument. Whoever won, there were going to be social workers who won. Or, if you prefer, whoever lost there were going to be social workers who lost. And the plain fact is that the statutory social workers acting as such lost the argument to the parents.

Moreover, this is a precedent – it is a case that will bind courts on similar facts in the future.

It’s worth saying a little more about that for a moment. There is an inherent problem within the family courts about challenging wrong procedures. The problem is this: because of the principle that the child’s welfare is the court’s paramount consideration, the court cannot punish the local authority for procedural errors or malpractice by failing to make the right order for the child. So the understandable perception is that the local authority gets away with the procedural errors. Prominent examples include:

• Bath & North East Somerset Council v A Mother & Ors [2008] EWHC B10 (Fam) (22 December 2008) (“allegations of perjury, attempting to pervert the course of justice and contempt” proved on the balance of probabilities against the social work team manager);
• G, R (on the application of) v Nottingham City Council [2008] EWHC 400 (Admin) (05 March 2008) (child removed with no lawful authority at all)

But this case did not take place in the family courts. An inherent problem for parents was addressed by bringing the claim in judicial review. It is often argued that this is the remedy for procedural challenges, but it seems often not to happen.

In my experience, acting also for other parents who are not social workers, there are a range of reasons why it is unusual. All are in some way a little sad.

• One is that if you lost in the family courts, it becomes more difficult, and therefore more risky, to argue that the procedural injustice needs a remedy. Would the outcome have been different had the social workers got the procedures right, and if not, why do you need a remedy? The answer to the first half of that question is, “possibly yes” and the answer to the second half is “because procedural justice matters”. But there is no doubt that the outcome – if you leave it that late – is put into the mix in reviewing merit.
• A second is that if you have been fighting to keep your child, whether or not in care proceedings, and have succeeded, you will often just want to put the whole horrific experience behind you and move on with your life.
• A third is financial. For some, at least, there is non-means-tested legal aid in care proceedings. And care proceedings (again subject to exceptions) are not subject to the ‘loser pays the costs of the winner’ principle. Not so in judicial review. Legal aid, if available, is means-tested, and the general rule is that costs follow the event – i.e. that you run the risk of paying the local authority’s costs if you lose. Sad, because it brings sharply into focus that legal aid rules are relevant to whether you can access procedural justice.

Note, however, that none of this discussion about the difficulties in getting procedural justice amounts to saying, “they only won because they were child protection professionals”. It is not true.

Moreover, it downplays the quite important precedent that applies to anyone and everyone subject to similar procedures. This case sets out at some length the differences between initial screening, initial assessment and child protection investigations. True, it isn’t or oughtn’t to be news, as all three of these are clearly set out in the relevant statutory guidance ‘Working Together’. But the relevance and applicability of the statutory guidance was contested. The relevance and applicability of the statutory guidance was upheld.

And the relevance and applicability of procedural justice was not – nor should it be – confined to child protection professionals.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers. He acted for AB and CD in the successful judicial review of Haringey LBC discussed here.

Data-gathering: damned if we do, damned if we don’t?

[I realise I haven’t posted for a while, but given that the widely reported case yesterday where Haringey was ordered to pay human rights compensation for an unlawful child protection enquiry was our case, it might be surprising if I had nothing to say! In fact, there is a lot to say here about good social work practice, details the mainstream press haven’t descended into…

If you don’t know the case I am talking about, it’s here: AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin) (13 March 2013)

You can read commentary from:

The Guardian: Couple falsely accused of child abuse win damages from Haringey council

The BBC: Haringey’s social services child inquiry ruled unlawful

The Telegraph: Baby P council under fire for launching ‘unlawful’ abuse inquiry

The Mail: Parents’ social service hell after one anonymous letter]

The facts

So, briefly, an anonymous allegation is made to Haringey Social Services about parents who, it later transpires, are child protection professionals. Haringey seek information from the GP, asserting that they are undertaking a child protection investigation, and also from the school. Nothing damaging comes back, the GP says explicitly that he knows them well and has no concerns. They are contacted by mobile, and immediately challenge the lawfulness of what has gone on before; their challenge sets in motion a course of events which results in Haringey saying they are escalating to a full-blown child protection enquiry, which in due course is closed down, suspected of having been malicious, when no concerns are found.

I want to focus for now, in two posts, on two criticisms that have inevitably been made about our challenge to Haringey. In doing so, I can highlight two points of wider relevance that the case has achieved, that are comparatively unusual.

“Damned if they do, damned if they don’t”

Some have inevitably reacted that Haringey are “damned if they do, damned if they don’t”. Haringey gets it in the neck when it fails to intervene robustly, then when it intervenes too robustly. For example, comments on the Mail’s article (linked above) include “And if the child was at risk and they had done nothing?” and “No point in reporting any suspicion of child abuse then as a Judge says it’s unlawful to investigate. Crazy or what!!”

In particular, there are concerns about information sharing and data gathering. The judge in our case was scathing about Haringey’s unlawfully contacting other agencies without consent. He said,

“Issue 3: Was the data-gathering exercise before and during the initial assessment process unlawful?

76. The initial data-gathering exercise was unlawful in two respects:

(1) The initial request for data was sent to EF’s GP accompanied by the erroneous information that LBH was currently working with the family, that LBH was already undertaking a CYPS assessment and that confidential details including the possible presence of risk indicators of physical abuse, should be provided. In addition to these statements or implications being erroneous, no consent had been obtained from EF’s parents and it was not a justification to seek the information without consent that their identity was not at that time known since this statement was also untrue.

(2) The consent of the parents had not been obtained before the school was approached. Moreover, it was impermissible to post details of the referral on RIO to enable the school nurse to read them prior to obtaining the parents’ consent.

77. These were serious departures from permissible practice and these actions were unlawful.”

But isn’t “the child’s welfare is paramount: share, share, share” a lesson that is drummed into us?

Quite possibly so. And such an approach may be driven by an aversion to the risk that the next Baby P may happen on our watch, or a certain complacency that no-one ever challenges misuse of data in the child protection context and wins.

But it is wrong. The data-gathering that routinely occurs is often unlawful. It can be successfully challenged. There are good reasons it is unlawful. And it is not a case of “damned if you do, damned if you don’t”.

So, three questions:

1. What does data protection law actually say?
2. Why is that a good thing?
3. How can we make sure we get it right both ways, i.e. share when we should, don’t when we shouldn’t?

What does Data Protection law actually say?

The Data Protection Act does not require us to share data. Rather, it sets out a limited set of circumstances in which it is permitted. One of these is with consent. A second is where it is necessary “for the exercise of any functions conferred on any person by or under any enactment”. This second one is widely relied on, but it requires what is termed a “statutory gateway”.

One such statutory gateway is section 47 of the Children Act 1989. In the context of a section 47 enquiry, we can share relevant information without consent (subject, of course, to complying with the relevant statutory guidance).

That being the framework, the judgment in our case begins to make sense. There was no section 47 enquiry. There was no consent. The data gathering was unlawful.

Why is that a good thing?

Even if you accept this is technically right (which the judge said it is!) you might think it’s a bad thing, getting in the way of effective child protection.

I rather think that depends how far you favour a particular model of coercive child protection – which I don’t. But the legal case for that particular coercive model is dubious. Partnership with parents is one of the principles underpinning the Children Act, and what this means in the context of data-sharing is set out in the statutory guidance ‘Working Together’ (the name says it all!) at paragraph 5.35,

“The parents’ permission, or the child’s where appropriate, should be sought before discussing a referral about them with other agencies unless permission-seeking may itself place the child at increased risk of suffering significant harm.”

So, there is a threshold test: will seeking consent place the child at increased risk of suffering significant harm? Data-mining without consent is predicated on an assumption not only that the child is at risk of significant harm, but that working in partnership with the parents will place the child at increased risk. Doing it routinely is sending out a message that we either have no ability to work in partnership with parents, or alternatively that we presume all parents will take it out on their children if we seek to work in partnership with them.

That message is dangerous. It is going to reinforce a stand-off between parents and social workers. It is going to reinforce mistrust and create a vicious circle in which co-operative working between parents and social workers is ever less likely. It is a bad thing.

So conversely, getting data protection right, as well as being lawful, and consistent with ‘Working Together’ is a good thing.

There is another reason it is a good thing. Human rights. Data-mining in child protection matters intrinsically invokes the Article 8 right to private and family life. As a human rights profession, we surely don’t want to routinely undermine human rights. In words of Eileen Munro I have quoted before,

“…liberal societies have placed a high value on privacy and confidentiality precisely because they present an obstacle to the State. While the State sees this in a negative light, the individual values it as a protection of their freedom. The professional ethic of confidentiality is seen by the government as an obstructive barrier to be removed in implementing their monitoring and assessment programme but this should remind us that the ethical principle is playing its rightful part as a protective barrier, defending the individual against excessive intrusion by the State.”

[Munro, Eileen (2007) Confidentiality in a preventive child welfare system. Ethics and social welfare, 1 (1). pp. 41-55]

How can you make sure you get it right both ways?

As the Information Commissioner explained in the context of Every Child Matters,

“The Every Child Matters agenda extends social care from protection to welfare. Although there are overlaps, this shift means that substantially more information will be collected and shared about substantially more children for different reasons. These different purposes raise different considerations from a data protection perspective. It is important that approaches used in the context of protection are not assumed to be transferable to the welfare context.”

[Protecting Children’s Personal Information: ICO Issues Paper, Information Commissioner’s Office]

Remember, then, there is a threshold test. Below it, you need consent. Above it, you don’t. Failing to seek consent when below the threshold is unlawful. Failing to protect when above the threshold is unlawful. It is not “damned if you do, damned if you don’t”. It is “damned if you do when you shouldn’t, damned if you don’t when you should”. Since the boundary between the two is clearly defined, you can get it right both ways and all the time.

Of course, you need to avoid other errors made by Haringey, you need to properly understand what is meant by significant harm, the boundary between child welfare and child protection, and the point at which section 47 bites. But that is another blog for another day.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers. He acted for AB and CD in the successful judicial review of Haringey LBC discussed here.

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

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

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

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

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

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

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

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

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

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

The issues in common

Both cases:

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

Lessons on consent – a reminder

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

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

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

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

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

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

Lessons on capacity – a difference

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

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

Lessons on choice – a problem

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘Post Adoption Placement Breakdown’ – a gripping whodunnit!

K (A Child: Post Adoption Placement Breakdown), Re [2012] EWHC B9 (Fam) (27 July 2012)

If this were a whodunnit, I guessed the plot by chapter 15. Paragraph 15 actually since it is a judgement, but that’s still pretty early on given that the judgement runs to over 200 paragraphs. I still read it to the end, it was a real can’t-put-down page turner with a breadth of plot and elements of tragedy that gripped. And it had some unexpected twists to the plot to keep you reading, like a good whodunnit. And it kept you guessing until the very last paragraphs what the solution was, again like a good whodunnit.

Of course, the title was badly chosen: “A Child: Post Adoption Placement Breakdown” gives away too much of the plot. But what was it about paragraph 15? It reads:

MG and FG are committed Christians. They are Roman Catholics (the significance of which will become apparent later in this judgment). Their decision to adopt was borne out of a desire to help a child less fortunate than their own children. They approached Coventry City Council in February 2000. In their Form F it is recorded that they ‘do not feel able to take a child who has been sexually abused or who displays sexualised behaviour because of the effect this might have on Chloe and Rachel.’ It was recommended ‘that they are approved as adopters for one child of either sex aged between 4 and 6 years with no major health or emotional problems.’

So, I imagined, Katie is going to be adopted in ignorance of a past which certainly includes sexualised behaviour on the part of siblings (I had read that much in paragraph 2); such behaviour is going to emerge with Katie also; the adoptive parents are going to be unable to manage; there are going to be allegations made against them; there will be issues relating to either contraception or abortion because they are Roman Catholics; it will all end in acrimony; and the local authority will get a care order.

How far was I right, and if I was, how did I guess? The answer to the first question is that I was only partly right. Yes, there were questions raised about whether the adopters had full information [paragraph 28]. Yes, the adoptive parents were unable to manage – that forms the bulk of the judgement. Yes, there were allegations made [paragraph 55]. Yes, there was an issue relating to contraception [paragraph 82]. Yes, a care order was made [paragraph 206].

My imagination overplayed some features, drawing too heavily on apparent clues in the early paragraphs. But my imagination did not fail me. I want to pause for a moment and reflect on that. I could imagine how difficult it would be to take on a late adoption of someone with such a traumatic background. I could imagine what it must be like for Katie, after practically feral early years, to be expected to slot in as the younger sibling in a middle class family. I could imagine the clash between intrinsic and extrinsic motivators on behaviour, the parents struggling with wanting to inculcate the former, feeling they had to use the latter. I could imagine the inevitable rows, the deteriorating relationship…

And it is imagination. I can’t draw on personal experience of adoption, nor relevant professional experience. But if I, by imagining myself into other peoples’ situations, could understand what it must have been like, then my guess is that many other parents could imagine it too.

The shocking twist in the plot, therefore, for me, was to read the perspective of most of the professional involved. Almost without exception, they blamed the parents for the breakdown. And I was so disappointed in my professional colleagues for their lack of imagination. While bringing up their own children with comparative success, was it likely that the adoptive parents wanted an adoptive placement to go so badly? Isn’t it inevitably going to be frustrating if over many years you offer love and encouragement, only to have it thrown back at you? Surely it is not a leap of the imagination too far to imagine the despair that arises when there is no escape route because you have committed indefinitely, and repeated requests for respite and support are turned down; to appreciate the different pressures between adoptive parents committed 24/7 and professionals whose professional role regulates and protects from the consequences of contact? Did none of these professionals ask themselves the question, “Could I really do better with a child this damaged, and so little support?” Did they console themselves that while they couldn’t do better, their professional expertise still gave them the right to sit in judgement – “we’re not talking about me, we’re talking about you”?

I think the judge’s understated criticism of the way in which counsel for the local authority summed up was the highlight of this judgement:

If there was any remaining doubt about the local authority’s attitude towards these parents that doubt was removed by Miss McGrath in her closing submissions…  She said ‘I don’t know how any local authority could be expected to work with parents who show those attitudes’… Having urged me to avoid rhetoric and proceed only on fact, she asked me, rhetorically, why it is that stones have been thrown at a local authority that has put Katie’s interests at the forefront of its mind. Why is it, she asked, again rhetorically, that the parents are not able to agree that Katie is beyond parental control? The answer, she submits, is that these parents are entirely adult focussed. How any reasonable person could fail to accept that Katie is beyond parental control is, she said, ‘something the local authority struggles to grasp’. Where, she asked, again rhetorically, is the love that goes with the understanding of attachment disorder? [paragraph 170]

Now, the other significant prediction that I got right by paragraph 15 was that a care order would be made. This did not rely on imagination, here I could draw upon legal professional expertise. There are any number of cases which demonstrate the legal principle that care proceedings are not a forum to punish local authorities for their child protection failings. Remember, for example:

• Bath & North East Somerset Council v A Mother & Ors [2008] EWHC B10 (Fam) (22 December 2008), where the team manager, with a conviction for conspiracy to murder some years previously, tried to instruct the junior social worker (for whom we later acted) to lie to the court in evidence – the local authority still obtained special guardianship and care orders for the children; or
• G, R (on the application of) v Nottingham City Council [2008] EWHC 400 (Admin) (05 March 2008), where the baby was unlawfully removed without the authority of a care order at all, and the court ordered his return – the local authority still obtained a care order two days later.

I knew, therefore, that the welfare principle would guide the court to act in the best interests of the child, irrespective of the force of the arguments put forward by the adults involved, and of the blame being thrown around.

But while I expected a care order, I did not expect it to be such a close thing. It was such a close call, in fact, that at two points I changed my mind and thought a care order would not be made. They were:

• At paragraph 203, by which point, the judge has recorded how the expert – the one with imagination – does not think a care order will be best for either adoptive parents or child, has sympathised with the father’s plaintive question, “if this is the way the local authority treat us when we alone have parental responsibility, how will they treat us if they share parental responsibility with us under a care order?” and has concluded that s/he is “not satisfied that in this case the local authority has convincingly demonstrated how Katie’s situation will improve if I make a care order”; and
• At paragraph 205, where s/he argues “that in this case wardship has more to offer than a care order”.

Indeed, while I expected a care order, I don’t find very convincing the basis upon which it was made. The main argument both against a care order and against no order is the consequences arising from the poor relationship between the adoptive parents and the local authority. But while the judge is unconvinced a care order will improve matters for Katie, s/he thinks no order would be unhelpful. So the best that can be said for the care order that was made is that it will do less harm than no order at all. My concern about this derives from the doctrine of necessity. The doctrine of necessity applies here because Article 8 requires that the making of the order is necessary. And one part of the doctrine of necessity says that the person relying on it should not have themselves created the situation that made the act necessary. This local authority seems to have come perilously close to that.

And all for want of a little imagination. Or maybe because of a need to blame.

When I tweeted this case this morning, I said that the “High Court shows that being out of parental control need not involve blame”. My final observation is about blame. The judge here not only reasoned that blame was not necessary, but drew on statutory guidance to that effect [paragraph 202]. Contentious they may be in both a legal and everyday sense, but surely care proceedings frequently need not involve blame? I have shown that the welfare of the child is more important than the mud slung by the parties; but more generally, this is a protective jurisdiction, and as social workers we have a duty to protect from significant harm whether or not anyone is to blame for that harm.

Whodunnit? No-one dunnit. I guessed that right.

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

Let’s not criminalise forced marriage

Bodies endorsing existing guidelines

That’s right, this is the case against the proposed new criminal offence. The case roughly is: it’s mere political posturing, it’s unnecessary, it won’t work, and it will have unfortunate side effects.

In 2009, Multi-Agency Practice Guidelines on Forced Marriage were published. They had an impressive pedigree, endorsed by all of the branches of government in the image shown. And one thing I especially liked about this document is that, even before the contents page, it asserted boldly and memorably, citing in support no less than five international conventions, that

Forced marriage is an abuse of human rights and an abuse of the rights of the child.

I agree. That’s not why it’s unnecessary to create a new criminal offence. This is, from paragraph 2.12 of the same document:

Although there is no specific criminal offence in England and Wales of “forcing someone to marry”, criminal offences may nevertheless be committed. Perpetrators – usually parents or family members – could be prosecuted for offences including threatening behaviour, assault, kidnap, abduction, theft (of passport), threats to kill, imprisonment and murder. Sexual intercourse without consent is rape, regardless of whether this occurs within a marriage or not. A woman who is forced into marriage is likely to be raped and may be raped until she becomes pregnant.

That paragraph sets out a series of well-established offences, offences that the public-at-large recognise to be seriously criminal. If we want to be serious about using the criminal justice system to deter forced marriage, the way to go is to prosecute for these offences, sending a message to the public-at-large that forced marriage already is serious and criminal. We are forever inventing new offences, many of which are rarely prosecuted. They grab a headline for a day when they are invented – the political posturing bit – then lapse into desuetude [see Wikipedia] having never commanded the respect of the population like the old common law offences of rape, assault, kidnap, and the like.

The proposed offence is stated to be modelled on the criminalisation in section 1 of the Domestic Violence Crime and Victims Act 2004 of breaches of non-molestation orders. At the time this crime took effect, Women’s Aid offered this analysis of the advantages and disadvantages:

This process means that the woman becomes a witness in a criminal case rather than an applicant – and that potentially has both advantages and disadvantages.

The advantages of this change are that:

• it relieves the woman herself of the burden of taking action
• it should provide a stronger sanction – particularly for those cases in which (in the past) a power of arrest has not been attached
• the woman is not liable for any costs of a prosecution.

The disadvantages are that:

• it takes the process out of the woman’s hands, and the CPS will be able to pursue proceedings against her wishes – so it may be disempowering, and have consequences which she is powerless to stop
• she may be unhappy about criminalising her (ex-)partner – who may, for example, be the father of her children. This may be a particular concern for women from Black and Minority Ethnic communities, who are often particularly reluctant to seek help from the police, because of fear of racist or discriminatory treatment
• breaches of occupation/exclusion orders will not be a criminal offence – meaning that where an offender breaches both an occupation order and a non-molestation order (a relatively common situation), the woman will presumably be faced with appearance at two separate courts (except in those very few areas where there is one integrated Domestic Violence Court)
• criminal cases are normally open to the public and the press – in contrast to applications made in the family court, which are held in chambers (i.e. only people involved in the case are allowed in the room). Although there is a provision for reporting restrictions to protect the identity of victims/witnesses in criminal courts  (both magistrates’ and Crown courts), this has up to now been used only rarely in domestic violence cases
• if she chooses not to report a breach to the police (because of the above) legal aid may not be available for her to pursue committal proceedings in the county court

Leaving aside the obvious observation that the disadvantages form the longer list, it is clear that there are disadvantages that emanate from the very nature of criminal offences. The breach moves from the private arena to the public arena; criminal law requires proving the mens rea (the guilty mind) and not only the actus reus (the guilty act) beyond reasonable doubt; the status of witness rather than applicant means the victim loses control over the decision-making; criminal legal aid is available to defendants, not witnesses, while civil legal aid is available to applicants; and so on.

Does it not seem all too predictable that a process that results in a person subject to a forced marriage being potentially subject to a hostile public cross-examination in a procedure that may well not be capable of proving beyond reasonable doubt the guilt of a family member or partner, may not be popular with those it is intended to protect, however popular it is as a political gesture when first announced?

Don’t the two strands of my argument – the pre-existence of serious offences that could be used, and the difficulty of persuading victims to engage with the criminal justice system – cancel each other out? Well, in one sense, yes: there are already well-documented difficulties persuading victims to stay engaged with prosecutions. But in another sense, no: my strong suspicion is that the use of well-established ‘mainstream’ offences to criminalise forced marriage would maximise the chances of engagement, while the use of new and ‘niche’ offences would not.

Time will tell.

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

KM v Cambridgeshire: the Supreme Court’s decision is not about assessment

“I’m just hoping that after tomorrow the link between value of cash payment and cost of meeting need is not utterly broken!”

…I tweeted yesterday, contributing to a debate about our hopes and expectations for today’s Supreme Court ruling in KM, R (on the application of) v Cambridgeshire County Council 2012] UKSC 23 (31 May 2012). This blog is about that case. I’m pleased to say that my hopes have been fulfilled. But I had set my sights low. I am utterly bemused by some of the other claims being made for this judgement.

Community Care: three key questions

Adult Community Care issues can generally be boiled down to three questions:

• Assessment: deciding what needs should be met
• Funding: deciding who is going to contribute what to the cost
• Delivery: deciding how the needs are going to be met

The KM case was about direct payments, so where do direct payments fall to be considered? Answering that question is key to understanding this judgement. Although direct payments involve the flow of money between local authority and service user, they are not about how the package is funded. And although there are tools to determine how much a direct payment should be, these need have little to do with assessment of eligible need. Direct payments are, pure and simple, one of a number of ways of delivering a service.

What the Supreme Court said about assessment

To be fair, the Supreme Court said a fair bit about how to assess eligible need:

• It set out the legal framework (paragraph 11ff);
• It affirmed that the statutory guidance ‘Prioritising Need in the Context of Putting People First’ gets the framework right (paragraph 16);
• It reaffirmed that once a local authority has determined eligible need, it must meet that need (paragraph 21);
• It decided not to revisit the case of Barry, which held that resources could taken into account during the assessment process (paragraph 43);
• It decided that the assessment of eligible need in KM’s case was not irrational (paragraph 38).

What the Supreme Court did not do is say anything new. It certainly said nothing that would turn a previously ineligible need into an eligible need. And therefore it said nothing that would turn someone who was previously ineligible into someone who is elible.

And therefore I am bemused by the Guardian headline, ‘Court ruling means thousands more disabled people could get access to care‘.

Where the RAS fits in: service delivery

Roughly, local authorities have three possible approaches to delivering the services to meet eligible need. One is to deliver it directly. One is to commission someone else to deliver it. And one is to allow the service user to commission services themselves.

It is here that the RAS fits in. Essentially, the RAS is a tool used in the process of converting eligible need into a cash value, so that the service can be delivered in cash instead of in kind.

Though this is hardly a secret, I am very cynical abut the RAS. Not only is it a tool used to convert eligible need into a cash value, but it is used to obscure the process. In theory, there is a scientific basis. The RAS uses an algorithm. According to that reputable source, Wikipedia,

“Algorithms are essential to the way computers process data. Many computer programs contain algorithms that detail the specific instructions a computer should perform (in a specific order) to carry out a specified task… Thus, an algorithm can be considered to be any sequence of operations that can be simulated by a Turing-complete system.”

Sounds scientific? But according to Luke Clements (2011) ‘A Sideways Look at Personalisation and Tightening Eligibility Criteria’ in Elder Law 1 pp47-52, along the way, “any science in the process is jettisoned in favour of witchcraft.” The computer does the sums, but what the end result has to do with the original assessment of need is anyone’s guess.

Remember, there are two other ways of delivering services. They can be delivered directly, in which case the local authority must have a fairly good idea how the service delivery meets the eligible need. Or the local authority can commission directly, in which case it will also know how much it costs to meet the eligible need.

It is ironically only when the service user is commissioning their own services that the algorithm – or witchcraft – which obscures the link between the eligible need and the cost of meeting it comes into its own.

Back to KM v Cambridgeshire

KM had his needs assessed. He was seeking direct payments to meet those needs. He has considerable disabilities. Cambridgeshire used the RAS, then another algorithm called the Upper Banding Calculator. Then it jiggled about with the figures a little bit more. Ultimately he was offered £85,000 per annum. But he thought he should get £157,000 per year.

That is a big difference. But was the dispute about what his needs were (i.e. the assessment), or was it about what it would cost to meet them (i.e. the service delivery)?

Here’s the simple answer: Cambridgeshire was so effective at obscuring its decision making process that KM couldn’t tell what the dispute was about. The Supreme Court criticizes Cambridgeshire for three things:

• Failing to be open about its assessment of the mother’s contribution to care (paragraph 30);
• Failing to be open about its rejection of the independent social worker’s assessment (paragraph 34); and
• Failing to explain how it arrived at its own sum (paragraph 35)

It would be correct to characterize this case as being ultimately about transparency and not about assessment or resources.

So is the case good news for service users at all?

A brief history of transparency

Having dismissed the notion that thousands will become eligible, having highlighted that the case says nothing new about assessment, having said ultimately it was just about transparency, is it just a storm in a teacup?

No! It is well worth remembering where we were at before:

In Savva, R (on the application of) v Royal Borough of Kensington and Chelsea [2010] EWHC 414 (Admin) (11 March 2010), the high court upheld the principle of transparency:

“without being able to properly understand the use made of the RAS, the service user and anyone acting on her behalf, is left totally in the dark as to whether the monetary value… is adequate to meet the assessed need… The process of conversion made by the Panel is not explained to the service user. It should have been underpinned by an evidential base, and it was not.”

And as I commented at the time,

“What is being said is that there is a duty to give effect to the rhetoric, and actually demonstrate how the cash payment is adequate to meet assessed need. If the duty to give reasons goes that far, it may help to ensure that the cash payments actually do link to assessed need. Which in turn may undermine the approach of ‘Points mean Prizes’, and defer the day when a computer programme completely replaces the social worker.”

The judgements in KM’s case in both the High Court and the Court of Appeal below were bad news for transparency, and therefore bad news for anyone like me who wants a link between the cost of meeting need and the value of the cash payment. In KM, R (on the application of) v Cambridgeshire County Council [2010] EWHC 3065 (Admin) (26 November 2010), the Court said this:

“[The Claimant] criticises the Defendant for failing to provide an explanation setting out the services required to meet the Claimant’s needs. That appears to me to be a complete misunderstanding of the system of self-directed support. Both the RAS and the Upper Banding Calculator, compared as they were with the assessment and operated using the skill and experience of social workers, were assessment of needs and not services but the RAS was a tool for translating needs into a sum which was adequate to provide the services for those needs by reference to the average costs of the provision by the authority of meeting those needs for other disabled people.”

Upholding this decision last year, in KM, R (on the application of) v Cambridgeshire County Council [2011] EWCA Civ 682 (09 June 2011), the Court of Appeal observed that, “There does not need to be a finite absolute mathematical link” between payment and need.

In short, the history of this case is a history of judicial approval of algorithms and witchcraft, of obfuscation and lack of transparency. The beauty of today’s ruling, the reason I can consider it a victory, is that it reaffirms Savva on the need for transparency. Particularly poignant is the observation in paragraph 36:

“that a local authority’s failure to meet eligible needs may prove to be far less visible in circumstances in which it has provided the service-user with a global sum of money than in those in which it has provided him with services in kind. That point fortifies the need for close scrutiny of the lawfulness of a monetary offer.”

Or to put it another way, it is concerning that it is too easy to use direct payments to obscure potentially unlawful cuts that would be quite obvious if they were delivered or commissioned directly.

The RAS should still go!

The RAS has survived another level of challenge, see paragraph 26. But I still think it should go.

The argument in defence of the RAS in paragraph 24 of the judgement is:

“To set about costing each of the services identified in answer to the question at the [eligible need] stage upon, as it were, a blank sheet of paper would be unacceptably laborious and expensive. So a mechanism has been devised in order to give the exercise a kick-start. It is called a Resource Allocation System (a “RAS”); and many authorities, including Cambridgeshire, have developed one for their own use.”

I am resolutely unconvinced. If we can cost the services to meet the needs on a blank sheet of paper when we need to commission them, then we can cost them on a blank sheet of paper when the service user is going to commission them.

If the RAS is only “the generator of a “ball-park” figure, subject to adjustment up or down” (paragraph 26), then it is a wholly unnecessary extra step rather than a kick start to the calculation.

This is the heart of my concern. Arriving at a cash value of need by generating the starting figure by computer and the final figure by magic is not the most simple way of doing it, it is the most complicated. @TheSmallPlaces has shown in a series of blogs how local authorities actually value the complexity of the process:

• How ‘transparent’ are personal budgets?
• Relaaaaaaax, just have (blind) faith in your RAS
• Hi Ho, Hi Ho, off to the ICO we go… (more on RASs and transparency)

In this, the Supreme Court got it wrong. It was right to approve clear and transparent reasons. It was wrong to approve the RAS as simplifying the process. The RAS is the very antithesis of clear and transparent reasons. In this case, it helped to obscure not only the reason for the sum itself, but also disputes about the assessment. It should go.

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

Poverty pimps, old rope, and lemon soaked paper napkins – welcome to a post-legal aid world?

Last weekend, I attended a lawyer’s conference – ghastly concept, I know; it involved no natural lighting throughout a beautiful weekend. I got to cope by staying in my camper in beautiful places instead of at the conference venue, but that’s another matter…

The conference explored changes to the legal landscape, and therefore along the way the new LASPO Act, with its slashing of legal aid scope, and its new provisions regarding success fees and damages based agreements. Categorically and emphatically, I did not detect any kind of glee over a move from the former to the latter; but there was a certain resignation at the inevitability of it.

Meanwhile, out here in the social media world, there have been the early rumblings of warnings that “benefits sharks” are back, people offering to help those with benefits problems, then ripping them off for a cut of the “winnings”. The warnings are exacerbated, of course, by the coincidence in time of the Welfare Reform Act 2012, which replaces Disability Living Allowance with Personal Independence Payments requiring 3.2 million claimants to be reassessed for the more restrictive benefit.

These two pictures (resigned professionals or rip-off merchants) are completely different, but are they in fact looking at exactly the same phenomenon from two different angles? And if so, do I have any chance of trying to show each side the perspective of the other?

Well, I’m going to try. And this is why. I imagine that there are many people like me, who have spent years advising on social welfare law under legal aid, who are wondering how on earth we can carry on helping people in a post-legal aid world. And a model that involved charging the successful has to be engaged with.

The Queen should die! Truth and Justice in the Family Courts

In Book 19 of Thomas Malory’s Le Morte d’Arthur, Queen Guinevere is accused by Sir Meliagrance of high treason through infidelity with Sir Launcelot.

I thought that was a good opening line for a blog about truth and justice in the family courts! What actually inspired this were the reflections here of @suesspiciousmin on whether family justice is adversarial or inquisitorial. In particular, the gauntlet was thrown down (an appropriate mediaeval metaphor), “Imagine for a second that you wanted to make our current family justice system MORE adversarial, how would you do it?”, which led me to this classic account of adversarial justice.

To get to the bottom of this matter, the Queen has a champion who will fight to the death for her. Sir Meliagrance is somewhat surprised that this is Sir Launcelot himself (the Queen’s lover, so professional misconduct and a conflict of interests, but there we go), and at one point the King intervenes to give the go ahead to measures to make the adversarial joust fairer: Sir Launcelot is to be partially unarmed, and fight with one hand tied behind his back. He still wins, Sir Meliagrance is beheaded, and the Queen is vidicated until another day.

This is classic adversarial justice. The two opposing arguments are championed by an advocate, they fight to the death, the King looks on dispassionately, makes sure the fight is fair, and in due course declares the winner to have been vindicated.

As that reputable legal source Wikipedia would have it,

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense.

Never mind that the Queen had committed high treason by a lifetime’s affair with Launcelot. The aim of this joust is to be fair, not to establish the truth. Indeed, if truth be told, I can now reveal King Arthur spent his reign going out of his way not to discover the truth about his wife and his best friend. He feared, correctly, that the truth would undermine his vision of a fairer society embodied in the round table; and his hold on his kingdom. It is why this tragedy is called the Death, and not the Life, of Arthur.

But we have now established two important points about adversarial justice, that held true in mythical mediaeval England, and still hold true today.

Justice is not necessarily seeking truth

The first is that justice is not necessarily seeking truth. When I first realised this, it startled me, but it is a fact I have grown more accustomed to over the years. There are many reasons, as Arthur discovered, for not seeking truth. In criminal law, if you reflect on the rule against self-incrimination (the bit that leads the Agatha Christie suspect to say, “aah, but you can’t prove any of this…”) you will realise this is about a notion of justice, rather than truth.

What about the threshold, “beyond reasonable doubt”? On reflection you will realise that means that some people who are more probably than not guilty must be acquitted. Because we have decided that it is a worse injustice for an innocent person to be convicted than for a guilty person to be acquitted. So our notion of justice creates a system in which getting to the truth is not central.

This very day, the BBC has reported that, “Lawyers claim new policy causes miscarriages of justice“. a story based on people being required to plead guilty or not guilty before they have seen the case against them. The idea that you should know how good or bad a case your opponent has built up against you, before deciding how to answer the question whether you did it or not, is based on our notion of justice, not of truth.

I am not saying that our notions of justice are wrong. There are sound reasons for them. Listen to people justfying torture as a means of extracting information, and you may prefer justice to truth. Consider how vulnerable people can readily make false confessions of what they didn’t do, and you may be glad about rules against self-incrimination. Consider those occasions when juries have acquitted not so much because they believe in innocence but because they do not believe that the punishment fits the crime. If you take the same view, you may think this was justice (let’s just assume this happened in history – when we had the death penalty, for example – rather than that it happens today…)

What I am saying is that justice is not necessarily seeking truth, though an inquiry into truth is more a characteristic of inquisitorial than adversarial justice.

An inquiry into truth is not necessarily co-operative

The second lesson is that the true distinction between adversarial and inquisitorial justice is not that the former is confrontational and the latter is co-operative; but that inquisitorial justice is more active in its inquiry into truth. In many inquisitorial tribunals, the tribunal can itself take the lead in the process of extracting the evidence and inquiring into truth. And inquisitorial justice can be every bit as confrontational (or, as we might say, adversarial).

We don’t need to imagine what might have happened if the truth about the Queen’s infidelity came out, because it happened shortly afterwards. The Queen was sentenced to death; Launcelot stepped in again; there was open warfare between Launcelot’s and the King’s factions; the King’s illegitimate son Mordred meanwhile stepped in to seize the throne – and marry Guinevere; which results ultimately in the King and Mordred killing each other on the battlefield as the dream dies…

An inquiry into truth is not necessarily co-operative. Facing up to the truth can, as Arthur discovered, be every bit as confrontational and adversarial, as we see our dreams lie in tatters.

It is a trusim that the family courts are supposed to have an inquisitorial system  – albeit one questioned in the blog which prompted these reflections. It is certainly true that there are real questions about whether the inherent confrontation helps or impedes the inquiry. It was encouraging to be able to report just yesterday on a case in which a High Court judge adopted something more akin to Alternative Dispute Resolution in a public law child care case.

We only need to see the heat that is generated by the conflict inherent in the current system to know that something needs to change (see, for example, this blog from Pink Tape @familoo). Before we decide exactly what needs to change, we need to answer some fundamental questions:

What are the principles of justice that matter more than truth in the family courts? And how can we maximise co-operation rather than confrontation in bringing about that justice?

These are questions that suesspiciousminds attempts to answer.

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