Posted on | September 12, 2013 | 58 Comments
As well they might be. It’s the instinct of self-preservation kicking in I guess. I can’t blame ‘em for that. But whilst sympathetic on a human level I do think they’re wrong.
Children & Young People Now report that “Social work leaders criticise landmark child protection ruling“, that ruling being the decision of the President in Re J (A Child)  EWHC 2694 (Fam). I’m not going to analyse the merits of that particular case in this post. I want to look at what the social work leaders take on the transparency issue.
BASW are reported as saying this in response to Re J:
“While we agree that the public should be better informed about what social workers do and the decisions they take to protect children, this is not the way…Posting emotive footage of emergency care orders being undertaken is always going to be hugely distressing, but such images do not tell the whole story of the work done by many professionals which result in a child’s removal from their parents…If the public want children to be protected, they have to get behind social workers, understand that removal of a child is not a decision taken lightly by them alone and stop this demonising of social workers who are trying to work in accordance with the law.”
To me this completely misses the point, and misunderstands the task of the court. It is no part of the court’s job to make decisions about the publication of information based on a desire to promote a particular view – even if that view is a truthful and balanced view. And what’s more, the court has no effective means, even if it were appropriate, to ensure that material in the public domain is framed in a way favourable to any particular political or personal viewpoint or taste. The court’s job is to make decisions about publication of information based upon a) legislation and court rules b) the welfare of the child and c) the competing human rights issues. Whilst the court will wish through its decisions to promote and maintain confidence in the justice system one can argue that transparency is intended to further that aim, even if individual reports of particular cases may tend to reduce that confidence.
Nor is the court responsible for a PR campaign to improve the image of social workers (or lawyers or whatever). It is engaged in a process of making transparent the workings of the judicial and child protection system, so that others can make form their own views, it is not in the business of filtering information in order to influence those views – that would be propaganda. I suppose some might argue that a public judgment is on this basis a sort of propaganda (Think of judicial laments about the quality of Christopher Booker’s “tendentious” journalism and attempts to set the record straight) – but of course the purpose of such judgments is to say what has happened and why (no more and no less) – it is not a husting in support of the justice system – as the recent case of Re A (A Child)  EWCA Civ 1104 demonstrates (of which more in a further post). It is the official public record of the basis of judicial acts and of state interference with family life. But where proceedings are held in private a judgment is not in itself enough to maintain public confidence.
A spokesperson for the College of Social Work is reported as saying that “While it is understandable that families may feel powerless during care proceedings, and may want evidence for themselves, a video or photo only provides a snapshot of the situation as opposed to the care proceedings in court which allow all involved to give their views and cross-examine each other…The risk is that social workers may be named in the media but due to confidentiality for these very same families, the social workers cannot put things into context and defend themselves.”
This of course is to fall into the very same trap. It may be a mere snapshot, but it is the family’s perspective which, subject to the permission of the court that is tasked with protecting the welfare of the child, they are entitled to voice. More than that it is not just an “opinion”, it is a real, lived, painful experience even if it is profoundly at odds with other realities.
And of course, visible just beneath the surface of these quotes is an understandable fear that individual social workers will be harassed or pilloried online and even potentially in person. For me, part of the image problem child protection social workers have is created by or at least fed by the secrecy surrounding their work. I don’t think that the image problem can be solved without letting people voice their own lived experience of child protection professionals, and without allowing the public to form their own view. There has been vast amounts of inaccurate and highly inappropriate information in the public domain relating to care proceedings for years – and that will continue to be there, corroding public confidence regardless of what steps are now taken to lift the lid through publication of judgments, permissive reporting orders etc. Transparency of family proceedings can potentially dilute the effects of those negative reports, making available to the public a wider range of viewpoints.
In cases where there are direct threats to social workers, or incitement to commit offences against them of course the court is likely to take a different view but actually, if a child can’t be identified (big IF) and there is no harm to the child – why shouldn’t they be able to say “this person took my child away and I think it was WRONG”?
The problem, rightly identified by BASW is that the ability to tell one’s story is one sided. Inaccurate reports cannot be responded to. But there is in fact nothing to prevent Local Authorities from seeking permission to publish information – some form of agreed facts or press release – so that a case can be understood and inaccurate statements publicly rebutted (again if the big IFs are satisfied). Of course the reality is that such applications incur cost and inconvenience. But if publication of some information is warranted, yet the information as selected by the publisher or the perspective given is highly partial and misleading, the answer may be in more publication. After all, you can’t get the toothpaste back in the tube.
In due course the President of the Family Division hopes to make some documents from care proceedings available for reporters so that journalists are at least able to present a balanced and informed picture, although one suspects in some cases they may choose not to in the interests of a good story. But for the time being it IS skewed – Local Authorities are often unfairly criticised, errors are exaggerated and it is difficult for them to respond, and no doubt upsetting and distressing for social workers who are identified. And we know too that sometimes criticism of social workers or other professionals is warranted and it is in the public interest for us to know when things have gone wrong, and to know that the errors have been identified and dealt with. As far as the anonymity of social workers is concerned well, that ship sailed with the Bristol City Council v C & Ors  EWHC 3748 (Fam) case. Being subject to professional criticism or complaint in private is enormously stressful, and undergoing public censure is even worse (it doesn’t matter whether or not it is warranted – I speak from experience) – but as with many professional and public service roles it comes with the job. We have to be prepared to stand by our professional conduct.
Some would argue that inside the court doors the imbalance appears to run in the opposite direction: with few independent experts now, 90% of all information upon which the court’s decision is based drawn from the Applicant Local Authority. Whatever the truth, that surely is the perception of a parent, (particularly as they are unlikely even to see the Guardian as independent). From the standpoint of a parent the cards are stacked against them from the start (more so when all the work is done pre-proceedings). No wonder they want to tell the world what they see. We should not dismiss their perspective even if we disagree with it, nor should we protect the public from the “emotive” and the “distressing” – it is the reality of care proceedings and of taking away children. It may be justified but it is draconian.
So, whilst there are all sorts of complexities and practical difficulties in achieving transparency without impacting negatively on the children at the heart of these cases it is right that the courts are striving to do so, even though as a result of each case requiring individual consideration there are significant resource and cost implications.