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Social workers, as a profession, exist in a contested domain, within a framework of rights and duties that are defined by law, by employers and professional codes of conduct (Swaine and Rice, 2009: xi). To be effective a social worker must have an understanding of statutory and legal requirements, and while using the law attempt to balance conflicting principles and practices. It is important to note that ‘the law does not tell us what we ought to do, just what we can do… most decisions in social work involve a complex interaction of ethical, political, technical and legal issues which are all interconnected’ (Banks 1995). In answering this question I intend to focus on the Children Acts 1989 and 2004 detailing the background to the acts and applying them to the Smith case study.
The courts in England are managed by Her Majesty’s Courts Service, an executive agency of the Ministry of Justice (Brammer 2010). The courts are divided into criminal and civil courts. Criminal courts deal with criminal cases and civil courts deal with non-criminal disputes. The role that social workers play in courts can be broken down into public law and private law. Public law cases are circumstances where the state, acting through local authority social services, takes steps to intervene in family life. This includes applications for care orders, supervision orders and emergency protection orders. Proceedings where individuals bring cases in their own name are known as private law cases. Contact and residence cases, applications for specific issues orders, prohibited steps orders; parental responsibility and adoption are examples of private law cases. The English court structure is hierarchical with the Supreme Court at the top and the Magistrate’s Court and Tribunals at the bottom. This means that cases are seen in the inferior courts first before proceeding, when necessary, to the superior courts. A decision made in the Supreme Court would bind all inferior courts. Social workers can be involved at all levels of the court structure and undertake tasks such as writing reports, appearing as witnesses, or providing support to a service user. As such it is essential for social workers to have a good understanding of the law as it applies to their role. Most court proceedings are held in public in accordance with Article 6 of the Human Rights Act 1998, everyone is entitled to a fair and public hearing. However, in certain circumstances the public and press are excluded and cases are heard privately or ‘in camera’ (Brammer 2010:65).
For social work practice the Human Rights Act 1998 provides an opportunity to empower service users and professionals while promoting best practice, ‘as well as an extra layer of responsibility’ (Cull and Roche 2001:80). Local authorities can no longer use budgetary constraints as justification for decisions as discretionary policies and decisions can be challenged on the basis of an alleged breach of human rights. (Cull and Roche, 2001). The Human rights Act 1998 incorporates the Convention for the Protection of Human Rights and Fundamental Freedoms into UK domestic law (Brammer 2010). The European Convention for Human Rights contains rights, prohibitions and freedoms arranged in articles. The focus of the Human Rights Act 1998 is to promote and uphold rights contained in these articles and it provides opportunities to promote anti-discriminatory practice.
Social workers legal areas of responsibility are classified as duties or powers. Social services are obliged to carry out a duty. There is no discretion or allowance and failure to carry out a duty ‘could found an action for judicial review’ (Brammer 2010:17). For example, under section 47 of the Children Act 1989 local authorities have a duty to investigate if they have ‘have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm’ (Children Act 1989, Section 47(b)). Powers give a social worker the authority to act in a particular way but there is discretion to decide how to act. For example, a local authority has power to make payments to parents in ‘respect of travelling, subsistence or other expenses incurred by that person in visiting the child’ (Para. 16 of Sch. 2 to the Children’s Act 1989).
Specific pieces of legislation are more relevant to social workers in their specific roles. The Children Acts 1989 and 2004 are of particular relevance to those working with children and families. Prior to the implementation of the Children Act 1989 the law as it related to children was found in various acts and judicial hearings. The Children Act 1989 combined and simplified existing legislation in order ‘to create an enlightened and practical framework for decision-making, whether the decision is taken in the family home, in a local authority office, in a health centre or in a court room’ (Allen, 1998, quoted in Cull 2001). Various forces led to the implementation of the Children Act 1989. Firstly, the need to address numerous child abuse and child death scandals such as Maria Colwell and Jasmine Beckford. Central themes that emerged from inquiries into the deaths of these children were the need for better cohesion between agencies to better protect children and consideration of the child’s welfare as paramount (O’Loughlin and O’Loughlin 2008). Such themes subsequently emerged in the Laming Inquiry (2003) following the death of Victoria Climbie, and other subsequent inquiries. These continual failures seem to indicate that the Children Act 1989 does not seem to be fulfilling its purpose. Secondly, international commitments made to the United Nations Convention on the Rights of the Child 1989 meant the need to provide legislation highlighting the importance of children’s rights. The Children Act 1989 recognised the right of children to have their voices heard in the decision-making process and made provisions for children’s guardians to be appointed by the Children and Family Court Advisory and Support Service (CAFCASS) representing the child and the child’s interests in court (Children Act 1989, s.41). Under section 44(7) of the act children of sufficient age and understanding were enabled to refuse to undergo medical assessment, something that the children involved in the Cleveland Inquiry (1988) had not been able to do (O’Loughlin and O’Loughlin 2008). The Act gave flexibility to the court to meet individual children’s needs in particular circumstances and to act in the best interests of that child (Brammer, 2010). The Children Act 1989 ‘brought together public and private law to ensure that the welfare of the child is paramount’ (O’Loughlin and O’Loughlin, 2008:21) and reaffirmed the belief that children were best brought up within their families, with minimal intervention from the state (Brayne and Carr, 2008).
In response to the Laming Report (2003) into the death of Victoria Climbié the government published the Green Paper, Every Child Matters. This document had four key themes; more focus on supporting families and carers, timely intervention and protecting children from falling through the net; addressing issues of poor accountability and ensuring that childcare workers are valued, rewarded and trained (Brayne and Carr, 2008). The Children Act 2004 was passed following consultation on this Green Paper. It provides the legislative framework required to address the issues highlighted in the Laming report. Its main aim was to develop ‘more effective and accessible services focused around the needs of children, young people and their families’ (Brayne and Carr, 2008 p.155). The main provisions of the Children Act 2004 include a duty to co-operate to improve the wellbeing of children, especially in light of failings by multiple agencies to protect children like Victoria Climbié. Under the Act local authorities have a duty to make arrangements to improve wellbeing and partner agencies have a duty to co-operate with local authorities. To enhance the duty of agencies to co-operate Section 8 of the Children Act 2004 imposes the duty to safeguard and promote the welfare of children. Agencies are encouraged to prioritise their responsibilities to children and share early concerns in order to prevent crises. Legislation in the 2004 Act requires that all agencies in contact with children recognize that their needs are different from those of adults and safeguard and promote their wellbeing in the course of their normal duties. Section 17 of the Children Act 2004 introduced the requirement for local authorities to produce Children and Young people’s Plans (CYPP). ‘The CYPP should be the single, strategic, overarching plan for all services and all relevant partners’ (Brayne and Carr, 2008 p.160). The 1989 Act focused on child protection, the key term in the 2004 Act is ‘safeguarding’. ‘Child protection is linked to legally based state intervention, safeguarding is a means of ensuring that children receive the support that they need for their wellbeing’ (Brayne and Carr, 2008 p.161).
The Children Act 2004 required the establishment of Local Safeguarding Children’s Boards in order to promote better collaboration between agencies in safeguarding the wellbeing of children; the creation of an information database known as Contact Point to facilitate contact between professionals involved with individual children to secure ‘early, coherent intervention’ (Brayne and Carr, 2008 p. 163); and the appointment of children’s services directors in children’s services authorities to ensure ‘political leadership and accountability for the performance of children’s services’ (Brayne and Carr, 2008 p. 164).The Children’s Act of 1989 and 2004 have both gradually endeavoured to develop legislation and administrative roles to do with children in a broader sense and to make official provision for children better and safer. With the Children Act 2004 the functions of social services did not change but how they are delivered has been modified. (O’Loughlin and O’Loughlin, 2008)
The Children Act 1989 outlines the responsibilities that local authorities have towards children in their area. Practice is guided by three underlying principles. Firstly, enforced intrusion into family life should be avoided wherever possible. Secondly, local authorities should work in partnership with parents and provide support to try to keep families together. Lastly, local authority resources should be targeted on families in need to ensure support is available to avoid children suffering ill-treatment or neglect and in extreme circumstances being taken into care (Cull 2001). With the Smith family the starting point under the Children Acts 1989 and 2004 must be to help safeguard and promote the welfare of Andrew and Annie. Under section 47 of the Children Act 1989 if the local authority ‘have reasonable cause to suspect that a child who lives or is found in their area is suffering, or likely to suffer, significant harm, they must take such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare’ (Children Act 1989, s.47 (1) (b)). Enquiries made are the beginning of a process and the intention is to decide whether or not action is necessary. ‘Effectiveness of the assessment of the child’s needs (and those of the family) is key to the effectiveness of subsequent actions and services and ultimately to the outcomes for the child’ (Department of Health et al., 2000b). A social worker carrying out this assessment must do so in a manner that causes the least distress to Annie and Andrew, while being respectful to Clare and David. ‘Families affected by parental learning disability are also particularly likely to experience negative attitudes, and worse, from those with whom they come into contact’ (Department of Health 2007).Practicing in an anti-discriminatory manner would require not making assumptions about David and Clare’s parenting due to their learning disability. In order to work in partnership with the parents as the Children Act requires the social worker must ensure that the parents do not feel marginalised by explaining the purpose of the investigation and the likely outcomes. How the investigation is handled could affect the relationship between the family and social services and the way the family view input from professionals and other agencies that may become involved.
The Children Act 1989 introduced the terms ‘children in need’ and ‘looked after children’ and comprised various duties to promote the welfare of such children (Brammer, 2010). The Act even went further by putting in place provisions for children leaving care (Brammer, 2010). ‘Looked after ‘children refers to children who are subject to care orders and those who are voluntarily accommodated by the local authority. Children are considered to be ‘in need’ if they are unlikely to achieve or maintain a reasonable standard of health or development without intervention by the local authority; health or development is likely to be impaired or further impaired without local authority support; they are disabled (s. 17 (10) Children Act 1989). Local authorities have specific duties to children considered to be ‘in need’. As both David and Clare are known to professionals it is possible that the children have already been classified as ‘in need’. In this case the local authority has a duty to safeguard and promote the welfare of such children, provide services appropriate to their needs and ascertain and give consideration to the wishes of the child/ren (Children Act 1989, s.17, as amended). Following a section 47 investigation if it is deemed necessary the local authority would also have the power to provide training, advice, guidance and counselling for David and Clare (Cull 2001). David and Clare have co-operated so far and if this remains to be the case the local authority will carry out its duties in partnership with David and Clare, until no further formal intervention is required. It is particularly important to avoid a situation where poor parental care, which does not meet the threshold of significant harm to a child, later declines because of a lack of support. Failure to provide support in this type of situation can damage a child’s right to remain with their family (Department of Health, 2007).
If the Smith case was considered an emergency it would be possible to apply to court for an Emergency Protection Order (EPO), this would allow for immediate compulsory intervention in order to protect the child/ren (s. 44, Children Act 1989). Those with parental responsibility must be given a minimum of one day’s notice of impending action; however, action can be taken without notice. If the parents are not present at the initial application for the EPO they have the right to challenge the basis of the intervention after 72 hours. The order lasts a maximum of eight days, but can be extended for a further seven days following application. The applicant has parental responsibility of the child for the duration of the order. This is very much a control aspect of the act as the parent’s rights are removed in order to safeguard the child. The child must be returned as soon as it is safe to do so. (s. 44(10) Children Act 1989). The need for an EPO can arise when the referral is received or at any point in the involvement with children and families. Such an order seems to contradict Article 8 of the Human Rights Act 1998(Right to private family life). Although important it may prove difficult to balance David and Clare’s right to private and family life while protecting the children’s right not to be subjected to inhuman or degrading treatment or punishment (Article 3, Human Rights Act 1998).
If the out of hours social worker had initially failed to gain access to the children to initiate an investigation but concerns were not urgent the local authority could apply to court for a Child Assessment Order (CAO) (Children Act 1989, s. 43). The order would supplement to powers of the social worker in assessing the child. A court can only grant a CAO if there is reasonable cause to suspect the child is suffering or is likely to suffer significant harm and that assessment is required to ascertain if this is the case; without the order it is unlikely that assessment can be carried out. A CAO may give direction on how an order is to be carried out, for example, directing that children be kept away from home, or giving direction for a medical assessment to be carried out. With this particular order parental responsibility remains with the parents. Only a local authority or the National Society for the Prevention of Cruelty to Children can apply for a CAO.
In some circumstances it may be necessary to separate the child from an alleged abuser. As it may be considered too distressing and confusing to remove the child from the home the Family Law Act 1996 amended the Children Act 1989, giving the court power to order the removal of an alleged abuser from the home. In order for Exclusion Orders (EO) to be made the court must be satisfied that there is reasonable cause to believe that if the person is removed the child will no longer suffer or be likely to suffer significant harm. The court must be satisfied that there is someone else willing and capable of caring for the child and that they consent to the exclusion requirement. Four principles generally apply to all orders under the Children Act 1989: paramountcy of the welfare of the child (s1 (1)); reducing delay (S1 (2)) to avoid prejudicing the welfare of the child (in this respect many of the orders that could be granted by the court had specific time limits); no order unless considered in the best interests of the child (s1 (5)) and limiting litigation (s91 (14)) (Open University, 2003). The Children Act 1989 provides a welfare checklist s.1 (3) detailing what factors a court has to consider in certain proceedings relating to children. This list includes issues such as the child’s wishes/needs, sex, background, etc. Although the law is attempting to impose control when applying an order it also attempts to provide some balance and promote anti-discriminatory practice with children and families.
The relationship between social work practice and the law is an extremely complex and ever-changing one. The law is constantly developing especially with the influence of the Human Rights Act 1998 becoming more visible in court decisions. As a result social workers must have an understanding of how the law applies to practice situations recognising the strengths as well as the limitations of applying the law. ‘Sound knowledge of the law is not only essential to ensure that the actions undertaken are legal and proportionate, such knowledge is … essential for the social workers own professional protection’ (Brammer 2010: Foreword by Andrew McFarlane).
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