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.

Why I’m being threatened with a libel lawsuit by a #UKIP activist

Earlier this week I tweeted a screenshot of some deeply unpleasant remarks by Marty Caine, an activist with the Poole branch of the UK Independence Party.

 

The screenshot promptly went quite spectacularly viral, with multiple retweets and repostings. It also got published by Hope Not Hate and the International Business Times. My Twitter Connect page didn’t calm down for a couple of days.

Since then Marty Caine has announced his intention to sue me for libel, along with Nick Lowles of Hope Not Hate and Timur Moon of the International Business Times. He isn’t disputing that he said what was in the screenshot. However, he insists he was libelled because I stated that he had called Lee Rigby’s family idiots.

You see, he didn’t call them idiots. He simply stated that they believe the English Defence League are right-wing fascists, which is also believed by a lot of idiots.

If that makes no sense to you, then you’ve understood Mr Caine’s argument perfectly.

Anyway, since Mr Caine seems to believe I’ve taken him out of context, here’s a Storify of the full exchange. It’s rather long and very silly, but I think it doesn’t so much vindicate him as show him digging himself into a deeper hole. He also makes some spectacularly defamatory remarks about me along the way. Who is supposed to be suing who here?

Before anyone gets excited I should point out that I’ve yet to hear from Mr Caine’s lawyers. And frankly, I’d be very surprised if I actually do.

Mr Caine appears to be something of a colourful character, to say the least. I’m not entirely sure what his position is at Poole UKIP, though I understand that part of his role is to look after their social media. Which might explain exchanges like this:

 

 

[I should point out that I’m not entirely certain that it was Marty I was talking to there. Call it an educated guess.]

Marty also describes himself as a comedian, disc jockey, karaoke jockey and entertainer. He also runs a web design business, if you fancy getting yourself a website with a nostalgic “1998 Geocities” vibe.

While I’m certainly not frightened by Mr Caine’s legal threats, I will say this. Marty, to paraphrase what may well be part of your karaoke repertoire, this song ain’t about you. A couple of weeks ago a fine young man and a brave soldier was killed in the most appalling manner by a couple of deluded thugs. This tragic and terrible crime was then seized upon by far-right knuckledraggers to try to stir up hatred and attack Muslims. Drummer Rigby’s family, even in the depth of their grief, did not give in to hate. They reminded the world that their son had lived and worked with people all of all faiths and backgrounds, and would not want his memory being used to attack others. They are to be commended for saying that, and it speaks volumes about their strength of character.

So, Marty, give up on thinking you can sue people because you strongly implied something rather than said it in black and white. Instead, I suggest you reflect on why your words caused such outrage and offence, and offer an apology.

 

 

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.

Death Pathway 2: Return of the Controversy

I originally published a post on the LCP in November 2012 before the independant review was announced

In praise of Sally Bercow

The wife of the Commons speaker is not normally someone who I’d go out of my way to admire. When she appeared on Celebrity Big Brother she struck me as somewhat vain and publicity-seeking. She’s also a former member of the Oxford University Conservative Association, a group that I’ve been gleefully sarcastic about in the past.

Even so, the news that she’s refused to settle in the matter of Lord McAlpine vs The Internet suggest the actions of someone with a lot of gumption. Libel cases can run into costs of £100,000 without even reaching court. Simply fighting the case (never mind losing it) can financially ruin all but the considerably wealthy.

Over the past month a lot of rubbish has been talked about the supposed evils of Twitter and other new media. This conveniently forgets that the original allegation was made in old media, and on usually-trustworthy Newsnight. The tweeters simply discovered that Newsnight was referring to accusations that had previously circulated, and correctly identified who they were talking about. Unfortunately, the Newsnight report then turned out to be inaccurate.

I can appreciate that Lord McAlpine must have experienced an extremely distressing week, but it’s also important to remember that he was not only generously financially compensated by the BBC and ITV. He was also quickly vindicated. The entire world now knows that Lord McAlpine is not a paedophile.

But more importantly, McAlpine’s subsequent legal action is one that could set a hugely dangerous precedent. That large numbers of people could be pursued and financially ruined for briefly and non-maliciously discussing the TV news. Those who’ve cheered on his pursuit of 10,000 people simply haven’t thought about the consequences.

News about his mass action against tweeters seems to have gone a bit quiet lately, but a few weeks ago these claims were circulated, suggesting that Twitter was simply refusing to hand over personal information to Lord McAlpine’s lawyers without 10,000 court orders, and that overtures to the police were being met with a bland “not a police matter”. I have to add some words of caution here in that these claims are unsourced, and if we should have learned anything recently, it’s not to believe everything that’s tweeted. Even so, it seems hard to imagine that any demand to Twitter that 10,000 sets of personal details be disclosed en masse would be met with anything other than a referral to the reply given in Arkell v Pressdram.

According to news reports, Lord McAlpine is demanding £50,000 and an apology from Sally Bercow. Given that Mrs Bercow has already publicly apologised, it seems likely that the sticking point on settlement may well be the matter of fifty thousand quid. And since, Mrs Bercow has indicated that she’ll meet him in court, what is her defence likely to be?

A quick disclaimer here. I’m not a lawyer, and I’m therefore not qualified to parse the following suggestions. For that reason the next few paragraphs should be treated as speculation and not as legal advice.

This blogger claims to have already obtained some legal opinions on any possible defence.

“The McAlpine case is weak on three grounds. First, the evidence that his reputation was maligned by contemporary tweeting is flakey, given the pre-existence of internet rumours going back a long way; second, suing individual tweeters for £500 could easily be construed by a Judge as a ridiculous not to say greedy valuation to put on one quite possibly neutral enquiry of others; and third, singling out Twitter alone is preposterous in the context of a multivariate world of online social networking. You have Facebook, Linkedin, blog threads and a dozen other equally effective ways of innocently transmitting speculation – up to and including word of mouth gossip in the office. To set a precedent in favour of civil prosecutions against mass opinion and gossip would be ridiculous. Further, we suspect that any higher Court (especially one within the EU’s legal framework) if faced with an appeal against any judgement favouring such a view would overturn the verdict without exception.”

‘The issue of intent is much murkier with regard to mentioning someone’s name on Twitter – especially if Mr X’s guilt or innocence in relation to the media expose was inconclusive at the time. Twitter users were simply commenting in real-time on what they were seeing, without any premeditated malicious intent,’ remarks another online source.

Meanwhile the political journalist Michael Crick has said that there’s another objection which will be raised by Bercow’s lawyers. Even in the worst libel cases, the maximum damages are usually around £220,000. Lord McAlpine has already received £310,000 from the BBC and ITV. Adding another £50,000 to the pile starts to look, well, a bit greedy.

The false accusations against Lord McAlpine were unfortunate, and they do show some of the potential pitfalls of social media. However, they also show the way in which our draconian libel laws can be used as a weapon by the rich and powerful against everyone else. This is why libel reform needs to happen as a matter of urgency. In the meantime, hats off to Sally Bercow for deciding to stand and fight.

 

 

The #Rotherham #UKIP fostering row: Further details emerge

Another day, another set of details emerge about the UKIP fostering row. This time courtesy of the Daily Mail. I’ve said before that I’m not comfortable with the way a sensitive case about vulnerable children is being played out and discussed in the media, but since other people are clearly going to comment on the case, I suspect throwing a tuppence forth from this little blog isn’t going to make much difference in the grand scheme of things.

Last week the Guardian alluded to tensions between Rotherham Council and elements of the local East European community, and yesterday’s Daily Mail fills in some of the blanks regarding this. Apparently the council has been the subject of protests from Slovakian families following a number of removals of children into foster care. These families are accusing the council of “child-stealing” for racist reasons and of trying to impose British values on them. This has led to protests from the Slovakian government who appear to be taking the side of the families.

Though the “British values” in question appear to be things like children going to school, not wandering the streets at 2am, and not living in a mice infestation.

The Mail being the Mail, they don’t appear to see any irony at all in, a couple of weeks after accusing the council of ideologically-driven fixations with multiculturalism, then granting a fairly uncritical interview with an alleged abuser, strongly suggesting that the council are racist towards East Europeans.

The words “shot at from both sides” spring to mind.

And naturally, there’s a rentaquote from John Hemming, an MP who seems to live in a strange parallel world where child protection proceedings are nearly always due to scheming, malicious social workers and hardly ever about averting another Victoria Climbie or Baby Peter.

These arguments appear to have been made in the courts as well as in the media and council meetings, apparently with some success. As the Guardian said,

But a family court judge ruled three of the children should be returned to the parents after the birth parents successfully argued that the council had failed in their duty to ensure the children enjoyed the linguistic right to learn and speak the language of their birth.

In the light of the Guardian and Daily Mail reports, I’m going to make a rough educated guess at the backstory here, which may or may not have to amended as further details emerge into the public domain.

It seems likely that the council would have been anxious to avoid a repeat of this judicial ruling. It also seems likely that they may have been vigilant for anything that would be immediately be pounced upon by the birth family’s lawyers, by the Slovak protesters, possibly even by the Slovakian government and media.

Something like the foster carers being members of UKIP. They may well have been doing a perfectly good job as carers, but that wouldn’t be what the family’s lawyers would say in court.

One could argue that the local authority should have challenged the judicial rulings, ignored the Slovak government and media, and served up the local Slovak community a hefty slice of if-you-don’t-like-our-rules-you-don’t-have-to-come-here. I’ll leave others to argue that one out.

But either way, the application of Occam’s Razor doesn’t require the council to be acting out of an ideological crusade about multiculturalism, or a Labour-inspired grudge against UKIP, in order to have acted in this way.

It certainly doesn’t require any David Icke-style conspiracy theories about Common Purpose.

Such a scenario is entirely consistent with the local authority trying to tiptoe around one set of legal, social and political grenades, and in doing so accidentally setting off a completely different grenade. And that’s my guess as to what’s happened. Eventually time will tell whether I’m right or wrong.

One thing this case does show is how complex and difficult fostering cases can be. When such cases are seized upon for political reasons, whether by UKIP or the Slovakian government, such complexities and difficulties are rarely grasped.

… And they’re off! But it’s a disappointing start for the Mental Capacity Act

In the line-up for the 2007 legislation Grand National we see the return of some old favourites.  Waiting for the starters’ orders are the Mental Health Act alongside the NHS & Community Care Act. We also see the return of the Chronically Sick & Disabled Persons Act and … surely not … Yes it is, the National Assistance Act is back for another plod around the course, surely he should have retired by now.  We also welcome along one of the favourites this year, in his first year of entry, the Mental Capacity Act is confidently waiting for what must surely be a resounding victory for all those he represents.   They’re under starters’ orders, and they’re off …

… but it’s a rather lack-lustre performance from the Mental Capacity Act 2005 (MCA).  I’m probably not the only one slightly disappointed by the sluggish start; 5 years into the MCA I have to admit that things probably haven’t gone as some of us may have imagined.  I was prompted to write this blog having recalled a recent occasion concerning a gentleman with a learning disability. He asked his carers for support to obtain an application form for a driver’s license and then to complete the form. Instantly, the carers decided that it would be far too dangerous for the gentleman to be driving around and, quoting the MCA, in his ‘best interest’ decided that it would be better if they didn’t support the gentleman to obtain and complete a driver’s license application form. I think the only correct consideration of the MCA were the two words, ‘best interest’ and even they were out of context! On every level, they failed to apply the MCA correctly or even remotely well. If  they had, they would have approached the decision from the assumption that the gentleman had capacity (which, interestingly he did) and provided the support he was requesting in the first place.

This of course isn’t an isolated incident and only recently was also reported about on the Community Care website.  Poor application of the MCA is widespread, it crosses all levels of care professions and it has to be addressed for the sake of those it should be protecting. If I were the MCA, I would be suffering from a complex right about now. Being misrepresented, misquoted, ignored, it’s enough to make even the strongest legislation question themselves!

Some organisations see the importance of MCA training, but where I often see a glaring hole is in people’s ability to apply the principles and use the MCA as the framework it was intended to be. People can usually quote phrases, provide general themes or even list the 5 principles of the MCA but that is often where knowledge and application stop. Carers and professionals alike should be discussing it daily, in team meetings, formally in supervision and informally. They should be applying it to all decisions being made and actions being undertaken on behalf of someone who may lack capacity. They should be questioning everything and inquisitively discussing whether any action or decision being made is the least restrictive or whether a seemingly unimportant decision made by carers or professionals has just had a significant impact upon individual.

The MCA doesn’t have to be a complex piece of legislation unattainable to anyone who doesn’t have a law degree.  It even comes with a very user-friendly Code of Practice to which of course, anyone working with an individual who may lack capacity must have regard for.  But it does have to be a piece of legislation that is used well and frequently by all concerned to ensure that we really do act in peoples’ best interest.

Jeremy Forrest and the Abuse of Trust

A couple of years ago, I was working as a nurse in child and adolescent mental health services (CAMHS) with a 16 year old girl. One day, out of the blue, she confessed an attraction to me.

My immediate response – other than to put in a referral to an optician’s, obviously – was to politely but firmly remind her that I was her nurse, that there was no prospect of anything but a professional relationship, and to suggest to her that she look for a boyfriend her own age. I also made sure that I didn’t work with her again unless there was a female colleague present.

Despite what you may think from Mills and Boon novels (those aren’t grounded in social realism? Who knew?) sexual relations between nurses and patients are strictly verboten under the Nursing and Midwifery Council Code.

20. You must establish and actively maintain clear sexual boundaries at all times with people in your care, their families and carers

If I hadn’t kept my boundaries, I wouldn’t have only been committing serious professional misconduct. I would also have been committing a criminal offence. The girl was 16, and therefore over the age of consent. However, she was in my care, and that would make it a crime under the Sexual Offences Act of “abuse of a position of trust”, which runs up to the 18th birthday. There are good reasons for this. The power of a teacher, nurse, social worker or children’s home worker over a young person can be enormous. With that comes the capacity to do enormous damage to vulnerable kids if boundaries aren’t respected and trust is abused.

I mention this because of a depressing slew of responses – often left in the comments threads to online newspaper articles – accusing the police and media of “hounding” a “young couple in love”. Some of those people seem to think if Jeremy Forrest had waited a few months then it all would have been fine – and for the reasons listed above, it wouldn’t. Others seem to regard the girl as some sort of teen seducer.

Have a look at this comment piece in the Independent. The author, quite rightly, takes the Daily Mail to task over a tacky, voyeuristic article that dissect’s Forrest’s relationship with his wife and with his pupil, by trawling their social networking accounts. If the Independent piece is good and well-argued, the comments left underneath are…..Oh dear.

As his lawyer said, his only crime was that he fell in love with a 15yr old…he was stupid the way he went about it, but I don’t think there will be any more than 5-10% of anyone who knows about this story that thinks he did it with any malice or force/manipulation of the girl, and that she didn’t know what she was doing. Again we’re casting judgement…but all I’m said is that I agree with Martin – love has no boundaries.

Was this a manhunt for murderers and war crimials or just a besotted couple? ………….Sad sad journalism indeed.

There’s been a few surprising voices added to this chorus. Peter Tatchell, for example, is someone I often agree with.

I subsequently had a Twitter exchange with Mr Tatchell. In all fairness, he was very clear that his view was that he’s not defending Forrest, and if he had a sexual relationship with his pupil, then he should be prosecuted for it. Mr Tatchell insisted his only objection was use of the word “abduction” for taking her to France.

Fair enough, but does Mr Tatchell really think any parent would agree that a teacher should be allowed to take their 15 year old daughter out of the country without their knowledge or permission?

Ironically, it’s the tacky Daily Mail article that gives a few hints that describing them simply as a couple in love is dubious to say the least.

[The girl], who describes herself on Twitter as a ‘self-loathing, music-loving, art and fashion-obsessed nostalgic loner’ was reported missing last Friday after failing to turn up at her school in Eastbourne.

A “self-loathing loner”? Admittedly it’s entirely possible to read too much into somebody’s Twitter profile. Even so, it does beg the question of whether that sounds like the self-description of a confident, beckoning Lolita.

One could argue – and admittedly this is speculation on my part – that it  sounds more like a girl who may be quite vulnerable. Perhaps even someone who might be susceptible to grooming.

Ultimately these are questions that will be decided in a court rather than in blogs, tweets and online comment threads. Even so, it ought to give those who depict the girl as an equal partner – or even a teenage seducer – some pause for thought.